the NAB Authorities (respondents) filed the reference bearing No.00-0000 against the petitioner alongwith others on the allegations and documented evidence

BEFORE THE CITY HIGH COURT, CITY

Writ Petition No. __________-P/0000

 

 

Name son of Name, resident of Name, presently Officer Inland Revenue, RTO, Name, Tehsil & District, Name.

 

…ACCUSED/ PETITIONER

 

VERSUS

 

  1. National Accountability Bureau (NAB), through Chairman NAB, City.
  2. Director General, NAB, Khyber Pakhtunkhwa, City.
  3. Judge, Accountability Court No. II, City.

 

…RESPONDENTS

 

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973, READ WITH SECTION 000-A Cr.PC FOR QUASHMENT OF PROCEEDINGS, PENDING AGAINST THE PETITIONER BEFORE JUDGE, ACCOUNTABILITY COURT-II, PESHAWAR (RESPONDENT NO.0), CHALLENGING ORDER/ JUDGMENT, DATED 00/00/0000 PASSED BY LEARNED JUDGE, ACCOUNTABILITY COURT-II, CITY, THROUGH WHICH APPLICATION FILED BY ACCUSED/ PETITIONER U/S 000-K Cr.PC WAS DISMISSED.

====================================

PRAYER: BY ACCEPTING THE INSTANT CONSTITUTIONAL PETITION, THE ORDER/ JUDGMENT DATED 00/00/0000, PASSED BY RESPONDENT NO.3, WHICH IS APPARENTLY ILLEGAL, UNLAWFUL, ARBITRARY, MALAFIDE, WITHOUT JURISDICTION AND BEYOND JURISDICTION, VOID, AB-INITIO, AGAINST THE STATUTORY PROVISIONS OF THE LAW ON THE SUBJECT, AGAINST THE RECORD/ EVIDENCE RECORDED SO FAR, HENCE, MAY GRACIOUSLY BE ORDERED TO BE STRUCK DOWN AND PROCEEDINGS PENDING AGAINST THE PETITIONER BE ORDERED TO BE QUASHED AND PETITIONER MAY PLEASE BE ACQUITTED FROM THE CHARGES UNDER THE CIRCUMSTANCES. ANY OTHER ORDER/ RELIEF/ DIRECTION WHICH THIS MONTH COURT MONTH DEEMED FIT AND PROPER IN THE CIRCUMSTANCES IN ACCORDANCE WITH LAW, FACTS AND RECORD OF THE CASE BE ALSO GIVEN SO AS TO PREVENT THE ABUSE OF PROCESS OF LAW/ COURT.

====================================

 

It may please your lordships;-

 

That facts giving rise to the instant constitutional petition are arrayed as under;-

 

  1. That, the NAB Authorities (respondents) filed the reference bearing No.00-0000 against the petitioner alongwith others on the allegations and documented evidence appended with the reference on 00/00/0000, before the Administrative Judge, Accountability Courts, City. The petitioner and other co-accused Name were arrested prior to filing of the reference i.e on 00/00/0000, however, the other co-accused Name was on bail. (Copy of the reference is appended as Annexure “A”).

 

  1. That, petitioner who was seriously ill and was admitted to LRH, City from Jail was allowed bail on medical grounds by this Honourable Court, vide order dated 00/00/0000. (Copies of the bail petition and order dated 00/00/0000 are appended as Annexure “B” & “C” respectively).

 

  1. That, trial was commenced since from 00/00/0000, and prosecution has so far produced 33 witnesses/ PWs to build their case, the due appreciation of the evidence recorded by the Prosecution and the record available on the reference, entitled the petitioner to be acquitted, for that, the petitioner filed application under Section 000-K Cr.PC before the learned trial court on 00/00/0000, which was taken into consideration by the learned trial court vide order No.00, dated 00/00/0000, and demanded reply from NAB Authorities, who filed replication on 00/00/0000, and case was adjourned for 00/00/0000 for arguments, and further on 00/00/0000, the arguments on application were advanced and case was adjourned for orders on 00/00/0000 and instead of deciding the application u/s 000-K Cr.PC, the order reserved, the relevant portion of order is reproduced for ready reference:

 

Order on 000-K Cr.PC application is reserved. Shortly, only few witnesses of the prosecution will be examined in the instant case, therefore, order of 000-K Cr.PC cannot be announced”.

 

(Copies of application, replication and order No.00, dated 00/00/0000 are appended as Annexure “D”, “E” & “F” respectively).

 

  1. That, accused/ petitioner challenged the non-pronunciation of order by learned Judge Accountability Court (respondent No.0) before this Honourable Court by way of quashment petition No.00-P/0000, which was came for hearing before the August bench on 00/00/0000, and this August Court was pleased to allow the petition to the extent that learned trial court shall dispose off the application filed by the accused/ petitioner u/s 000-K Cr.PC. (Copies of the petition and order dated 00/00/0000 are appended as Annexure “G” & “H” respectively).

 

  1. That, arguments on application were advanced before learned trial court (respondent NO.0) on 00/00/0000, and case was adjourned for orders for 00/00/0000. and the learned trial court vide order dated 00/00/0000, dismissed the application of accused/ petitioner. (Copy of the order dated 00/00/0000 is appended as Annexure “I”).

 

  1. That, as mentioned above the allegations against the petitioner made in the reference, and as per evidence recorded so far, the prosecution failed to prove the basic charge against the petitioner, hence, the proceedings pending before the court (Respondent No.0) are liable to be quashed and petitioner be acquitted in accordance with law, inter-alia, on the following amongst many other;-

 

GROUNDS;-

 

  1. That, NAB Authorities issued letter to Senior District Account Officer, City for provision of disputed refund vouchers and in response, the said official vide his letter No.000, dated 00/00/0000, provided the same to them through Name Assistant Treasury Officer, City, containing 00 vouchers, same was taken into possession by NAB Authorities through recovery memo (Page 000 to 000) of the reference, dated 00/00/0000, now as per cross examination of Name, Assistant Treasury Officer, Ex-PW-0, the disputed vouchers as handed over by him to the NAB Authorities are neither the part of reference nor have been so annexed. (Copy of the statement of PW-0 is appended as Annexure “J”).

 

  1. That according to Para-0 of the investigation report, the audit of the refund vouchers was conduct by Director General, Inland Revenue Audit, City, whose services were requisitioned by the NAB authorities but no where, the written report of the experts/ any letter whatsoever allegedly addressed to the Director General, Inland Revenue Audit, Lahore nor their expert has been referred which breaks the chain between the nexus of the NAB authorities and the aforesaid official, and it may safely be said that the said official has been introduced without due process of law, making the dent into the prosecution story.

 

 

  1. That, according to Para-00/00 of the investigation report, it is alleged that the petitioner/ accused has affixed the bogus signatures of Additional Commissioner Income Tax, which has been tried to prove through FSL report, annexed with the reference, whereas Name, Inspector FSL, KPK, City, who appeared as PW-00 has categorically denied having given any such report. Moreover in lieu of FBR letter dated 00/00/0000, when the refund amount exceeds one lac rupees, the competency to issue refunds through administrative approval lies with Additional Commissioner Income Tax, Regional Office, City. (Copies of statement of PW-00 and letter dated 00/00/0000 are appended as Annexure “K” & “L” respectively).

 

Now, inspite of the fact that FSL report is not connecting the accused/ petitioner to affix the bogus signature of his boss, Additional Commissioner Income Tax, Name, the National Bank City entertaining the fake instruments have not been made accused, resulting the reference to be based on malafide and for ulterior motives on the part of the prosecution.

 

  1. That, according to Para-00/0 of the investigation report, the NAB Authorities KPK, City has held the accused/ petitioner, responsible for issuance of refunds even in those cases where the approval have been granted by the Additional Commissioner and the Commissioner. This aspect of the investigation report and reference is not on legal footings as in lieu of FBR letter No. 0(00) self assessment/0000, dated 00/00/0000, the certificates are required to be issued by the accused/ petitioner being to than Income Tax Officer for the records of Director General Regional Tax Office, City, who is the supervisory Apex Forum in the hierarchy of Tax Administration. The powers of officials in granting approval is well defined in letter dated 00/00/0000 (Annexure “I”) the approval once granted in lieu of Annexure “I” is further highlighted through certificate issued to Director General Regional Tax Office, City in lieu of FBR letter NO.0/00/0000, dated 00/00/0000, which reveals that the same indicates the details of approval granted by the Additional Commissioner and Commissioner. The certificate is communicated and intimation for DG, Regional Tax Office, City, despite, the above narrated chain of responsibility and alleged legal lacunas found therein, the Additional Commissioner and Commissioner have also been abstrained to be arrayed as accused for the substantial justice.

 

  1. That, Investigation Report/ Reference also held that accused/ petitioner was not competent to obtain tax deduction certificate u/s 000 of Income Tax Ordinance, 0000 as collected from Unit Accountant, Frontier Works Organization (FWO) being the tax payer. Whereas, the Income Tax Officer never passed any order for provisioning of the certificates vide letter No.0000, dated 00/00/0000, letter was issued u/s 000 of Ordinance ibid to unit Account FWO, to only provide relevant information regarding the refund beneficiaries. Section 000 of Income Tax Ordinance, 2001, authorizes the Income Tax Officer to collect any information regarding any tax payer. So, vide the Unit Accountant, FWO, in his letter dated 0000/0000, just provided the information in the shape of certificates u/s 000 of the Ordinance ibid, as per reference Index 00/00, it has been held by the NAB authorities that assessment record in respect of Name, contractor do not exist, whereas the findings of the NAB authorities based upon the letter of Deputy Commissioner Headquarter Regional Tax Office, City and IP Officer Regional Tax Office, City is misconceived. Name Contractor is tax payer at NTN 0000000/0 having CNIC No.00000-0000000-0, and the refunds in the instant case were issued by the Additional Commissioner Income Tax on his approval vide his letter No.0000, dated 00/00/0000. (Copies of letters dated 00/00/0000, 00/00/0000, 00/00/0000, 00/00/0000 and Section 000, 000 of Income Tax Ordinance, 0000 are appended as Annexure “M”, “N”, “O”, “P” & “Q” respectively). However as per reference, it has been alleged that, petitioner/ accused, the Income Tax Officer has misused his authority by violating FBR, circular No.00/0000 dated 00/00/0000, whereas the provisions of FBR Circular C/No. ITB/0(0)/00 dated 00/00/0000 are also applicable in the case as finding of return in Income Tax cases is not mandatory. (Copies of FBR circulars dated 00/00/0000 and 00/00/0000 are appended as Annexure “R” & “S” respectively).

 

  1. That, it has also been alleged by the NAB authorities in their reference that, refund vouchers were issued without incorporating NTN/ CNIC in terms amounting to fraud, whereas, for office procedure and practice, the Income Tax Officer is empowered to register the case on TR (Temporary Register) numbers, further the provisions of Income Tax Ordinance, 0000, in terms of Section 000 and 000 of the Constitution of Pak, 1973 are not applicable, thus, Registration is also not mandatory and the concerned may not be penalized.

 

  1. That, one Name, the co-accused of the same reference, during the investigation process opted for his personal Plea Bargain as is evident from his letter addressed to NAB authorities. This communication has been concealed by the NAB authorities for the reasons best known to them but prima facie, seems to be based on malafide and for ulterior motives.

 

  1. That, it has also been alleged in reference that fragmentation of refund amount has been made by accused/ petitioner, whereas the refunds were given in piece meal. It was due to partial verification of the tax deduction and refund issue.

 

  1. That, entire evidence produced by the prosecution/ NAB authorities is not sufficient to link the accused/ petitioner with the offence for which the accused/ petitioner has been charged. So there is no probability for the accused/ petitioner to be convicted for the same, as the chain of the evidence when taken together, bears grave contradiction, warranting the Honourable Court to interfere with for the appropriate measures under the relevant provisions of law/ statute.

 

  1. That, continuation of trial in the peculiar circumstances of the case amounts to abuse of process of the court s the allegations as contained in the reference, even if believed, no case was made out and the continuation of the proceedings would amount to sheer abuse of process of law/ court.

 

  1. That, laboratory reports available on page 000 and 000 of the reference when peruse and taken together alognwith the statement recorded, leaves incurable dents in the prosecution story, entitling the accused/ petitioner to get its benefit accordingly.

 

  1. That on the basis of the above mentioned facts, record and evidence, there is no probability of the conviction of the accused/ petitioner for the offence charged with and the continuation of proceedings/ trial would serve no purpose but to further enhance the mental and physical agonies of the accused/ petitioner who is a patient and is suffering with severe infirmities beside to waste the valuable time of court. (Medical record of petitioner is appended as Annexure “T-0” to “T-00” respectively).

 

  1. That, the counsel for accused/ petitioner while arguing the application under Section 000-K Cr.PC before the learned trial court, pinpointed the evidence recorded by prosecution, with clear proof that, there were no names and details are indicated on the disputed vouchers, and same are not part and parcel of the reference, PW-4 Name in his cross examination had categorically admitted that such vouchers are not been made part of the reference, apart from this grave illegal exercise of power by the prosecution. No expert report is available on record as reflected in the investigation report which has been heavily relied upon by the prosecution, and one of prosecution witness PW-00 namely Name, Inspector FSL has denied any of his report which ahs also been pressed against accused/ petitioner. A plethora of judgments/ case law of this Honourable Court, as well as of other Honourable Courts and of the Apex court of the country was referred, but the learned trial court only relied upon the self presumed assertion that, accused/ petitioner only relied upon alleged contradictions in the statements of PWs, it’s a matter of fact and record, that learned trial court was apprised with record and the learned court scrutinized the same, but even than the matter had been ordered on conclusion of trial, which is against the provisions of Section 000-K and Section 000-A of Cr.PC, the learned trial Judge (respondent No.0) on his own connect the accused/ petitioner with other two co-accused involved in the instant reference, hence, committed grave injustice and left the petitioner on the mercy of this August Court.

 

  1. That, learned trial court (respondent No.0) failed to appreciate the statutory provisions of law on the subject and also failed to refer a single judgment/ case law submitted by the counsel for accused/ petitioner in the judgment impugned, which is against the administration of justice, equity and fair play, the accused/ petitioner apprehends injustice by the trial court in the given circumstances, hence, the impugned order is no order in the eye of law and is liable to be struck down.

 

  1. That, primary object of quashment or cancellation of the judicial and administrative criminal proceeding is to secure the ends of justice, the achievement of this end would involve a finding that if the proceedings are allowed to continue, the same would defeat the ends of justice and as a result would perpetuate injustice. The abuse of process of law is to be deprecated by all possible legal measures.

 

  1. That, valuable, legal and fundamental rights of accused/ petitioner are involved.

 

  1. That notice/ intimation of filing the instant writ petition against the respondents has duly been served upon the respondents through registered post. Copies of notice & receipts are attached as Annexure “U”.

 

  1. That court fee stamp paper worth Rs.500/- is attached with the petition.

 

It is, therefore, most respectfully prayed that by accepting the instant constitutional petition, the order/ judgment dated 00/00/0000, passed by respondent No.3, which is apparently illegal, unlawful, arbitrary, malafide, without jurisdiction and beyond jurisdiction, void, ab-initio, against the statutory provisions of the law on the subject, against the record/ evidence recorded so far, hence, may graciously be ordered to be struck down and proceedings pending against the petitioner be ordered to be quashed and petitioner may please be acquitted from the charges under the circumstances. any other order/ relief/ direction which this august court may deemed fit and proper in the circumstances in accordance with law, facts and record of the case be also given so as to prevent the abuse of process of law/ court.

 

INTERIM RELIEF;-

The petitioner having a prima facie arguable case in his favour and burden of inconvenience also tilts in favour of petitioner, the directions of this August Court for staying the proceedings/ trial carried out before Judge, Accountability Court-II (respondent No.0), till the final disposal of instant constitutional petition are required so as to prevent the abuse of process of court.

 

 

…PETITIONER

Through

Dated: _________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

 

VERIFICATION;-

 

Verified on oath that the contents of the foregoing writ petition are true and correct to the best of my knowledge and belief and nothing has been suppressed from this Honourable Court.

 

…PETITIONER

 

BEFORE THE CITY HIGH COURT, CITY

 

 

Writ Petition No. __________-P/0000

 

 

Name son of Name, resident of Name, presently Officer Inland Revenue, RTO, Name, Tehsil & District, Name.

…ACCUSED/ PETITIONER

 

 

VERSUS

 

 

National Accountability Bureau (NAB), through Chairman NAB, Name & others.

…RESPONDENTS

 

 

WRIT PETITION

 

 

AFFIDAVIT

 

 

I, Name son of Name, resident of Name, Attorney of petitioner, do hereby affirm and declare on oath that the contents of foregoing writ petition are true and correct to the best of my knowledge and belief and nothing has been suppressed from this Honourable Court.

 

 

 

D E P O N E N T

 

 

 

 

BEFORE THE CITY HIGH COURT, CITY

 

 

Writ Petition No. __________-P/2017

 

 

Name son of Name, resident of Name, presently Officer Inland Revenue, RTO, Name, Tehsil & District, Name.

…ACCUSED/ PETITIONER

 

 

VERSUS

 

 

National Accountability Bureau (NAB), through Chairman NAB, Name & others.

…RESPONDENTS

 

 

WRIT PETITION

 

 

CERTIFICATE

 

 

 

Certified that no such like writ petition has earlier been filed, nor decided by this Honourable Court.

 

It is further certified that notice of writ petition alongwith grounds of writ has been dispatched to the respondents.

 

 

…PETITIONER

Through

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

 

 

BEFORE THE CITY HIGH COURT, CITY

 

 

Writ Petition No. __________-P/0000

 

 

Name son of Name, resident of Name, presently Officer Inland Revenue, RTO, Name, Tehsil & District, Name.

…ACCUSED/ PETITIONER

 

 

VERSUS

 

 

National Accountability Bureau (NAB), through Chairman NAB, Name & others.

…RESPONDENTS

 

 

WRIT PETITION

 

 

LIST OF BOOKS

 

 

 

  1. Constitution of Islamic Republic of Pakistan, 1973.

 

 

  1. Other relevant law books shall be cited at bar.

 

 

 

 

…PETITIONER

Through

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

 

 

 

 

BEFORE THE CITY HIGH COURT, CITY

 

 

Writ Petition No. __________-P/0000

 

 

Name son of Name, resident of Name, presently Officer Inland Revenue, RTO, Name, Tehsil & District, Name.

…ACCUSED/ PETITIONER

 

 

VERSUS

 

 

National Accountability Bureau (NAB), through Chairman NAB, Name & others.

…RESPONDENTS

 

 

WRIT PETITION

 

ADDRESSES OF THE PARTIES

 

Respectfully Sheweth;-

 

Addresses of the parties are as under;-

 

Name son of name, resident of Name, presently Officer Inland Revenue, RTO, Name, Tehsil & District, Name.

…ACCUSED/ PETITIONER

VERSUS

 

  1. National Accountability Bureau (NAB), through Chairman NAB, City.
  2. Director General, NAB, Khyber Pakhtunkhwa, City.
  3. Judge, Accountability Court No. II, City.

…RESPONDENTS

 

 

 

…PETITIONER

Through

Dated: _________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

BEFORE THE CITY HIGH COURT, CITY

 

 

 

Writ Petition No. __________-P/0000

 

 

 

Name son of Name, resident of Name, presently Officer Inland Revenue, RTO, Name, Tehsil & District, Name.

…ACCUSED/ PETITIONER

 

 

VERSUS

 

 

National Accountability Bureau (NAB), through Chairman NAB, Name & others.

 

…RESPONDENTS

 

 

WRIT PETITION

 

 

INDEX

 

 

S.# Description Page No. Annexure
1. Writ petition with affidavit & certificate 1 to 24  
2. List of books 25  
3. Addresses of the parties 25-A  
4. Copy of the reference 26 to 41 “A”
5. Copies of the bail petition and order dated 00/00/0000 42 to 46 “B” & “C”
6. Copies of application, replication and order No.00, dated 00/00/0000 47 to 59 “D”, “E” & “F”
7. Copies of the petition and order dated 00/00/0000 60 to 79 “G” & “H”
8. Copy of the order dated 00/00/0000 80 to 83 “I”
9. Copy of the statement of PW-0 84 “J”
10. Copies of statement of PW-00 and letter dated 00/00/0000 85 to 87 “K” & “L”
11. Copies of letters dated 00/00/0000, 00/00/0000, 00/00/0000, 00/00/0000 and Section 000, 000 of Income Tax Ordinance, 2001 88 to 94 “M”, “N”, “O”, “P” & “Q”
12. Copies of FBR circulars dated 00/00/0000 and 00/00/0000 95 to 98 “R” & “S”
13. Medical record of petitioner 99 to 110 “T-1” to “T-12”
14. Copies of notice & receipts 111 to 112 “U”
15. Court fee stamp paper worth Rs.500/- 113  
16. Wakalatnama 114  

 

 

 

 

…PETITIONER

Through

Dated: _________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

OFFICE OF SARDAR NAME

Advocate Supreme Court of Pakistan, office at City

 

 

To

 

 

  1. National Accountability Bureau (NAB), through Chairman NAB, City.

 

  1. Director General, NAB, Khyber Pakhtunkhwa, City.

 

  1. Judge, Accountability Court No. II, City.

 

 

 

Subject:       NOTICE OF FILING OF WRIT PETITION.

 

 

 

On the advice of my client Name son of Name, resident of Name, presently Officer Inland Revenue, RTO, City, Tehsil & District, City, a writ petition is being filed before the Honourable City High Court, City Bench. A notice/ intimation of the same is being sent to you for information/ necessary action under the law. Copy of writ petition is attached herewith.

 

 

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

 

CITY HIGH COURT, CITY

 

 

 

Advocate Detail

 

Full Name: Name

 

Father’s Name: Name

 

Date of Birth: 00/00/0000                          CNIC # 00000-0000000-0

 

Permanent Address:Name

 

Present Address:      —As Above–

 

Email:asc@gmail.com                   District: Name

Mobile # 0000-0000000

License No. DC: bc-00-0000                                             Issue Date: 00/00/0000

License No. HC: bc-00-0000                                             Issue Date: 00/00/0000

License No. SC: _______________                                 Issue Date: 00/00/0000

 

 

MENTION YOUR PENDING CASES:

 

 

Case No. Petitioner Respondent
WP No. _____-A/0000 Name Department Name
CR No. _____-A/0000 Name Department Name
WP No. _____-A/0000 Name Department Name
WP No. _____-A/0000 Name Department Name
     
     
     

 

 

 

 

Signature: ________________

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