Rental Power Project: Shaukat Tareen files appeal against IHC judgment

Former finance minister Shaukat Tareen on Saturday challenged the Islamabad High Court judgment regarding the NAB reference related to the alleged corruption in rental power project in the apex court, praying to set aside it. He filed the appeal under Article 185(3) of Constitution. The ex-minister stated that the Islamabad High Court (IHC) has erred by dismissing his writ petition on technical ground that he did not assail the order of dismissal under Section 265-K of CrPC.
The former minister contended that the IHC has failed to consider and construe the true nature, scope and import that the appellant has immunity under Article 248 of the Constitution, adding the Article 248 of Constitution confers immunity upon certain constitutional functionaries, including the federal ministers, with respect to acts done in exercise of powers performance of functions in their official capacity.
He stated that controversy relating to him stems out of acts performed as finance minister, therefore he is not answerable to any court in relation to exercise of powers and performance and functions of his office as a federal minister under the Article 248.
No evidence of corruption or corrupt practices has been found against him but he has merely been roped in as an accused on account of certain purported/alleged procedural irregularities. The impugned proceedings against the petitioner are thus not maintainable.
Accordingly, the impugned reference and the impugned proceedings are void ab initio and the impugned judgment is liable to be set aside.
The IHC judgment has also failed to take into account the settled position that the very formation of the 'opinion' of the NAB chairman could not have been challenged by the petitioner before the accountability court under Section 265-K of CrPC.
Shaukat Tareen submitted that the accountability court lacks the jurisdiction and competence, in terms of the provisions of the NAB Ordinance, to scrutinize, substitute and judicially review the 'opinion' of the chairman NAB formed in terms of section 18 of the NAB Ordinance. However, the IHC judgment, which fails to take into account the same, is liable to be set aside.
The NAB chairman and other officials formed an 'opinion' in terms of section 18 of the NAB Ordinance that there was no case or material against him as recorded in the minutes of the meeting of the Executive Board of NAB dated May 23, 2013.
However, without there being any new material or evidence and without involving him in the process of investigation, the same was apparently changed/ reversed without any justification.
"Such colourful exercise of power by the NAB authorities was liable to be reviewed in terms of Article 199 of the Constitution," the petitioner said.
He contended that the scheme of initiating the proceedings under the NAB Ordinance is provided under section 18 where under NAB chairman or an officer of NAB duly authorized by him, after receipt of information of commission of offence through any source as mentioned in clause (b) of section 18, is required to examine the same and are under a positive mandate to form an opinion that it is necessary and appropriate to initiate proceedings against any person.
After formation of the opinion, NAB chairman or an officer of NAB duly authorized by him may refer the matter for inquiry or investigation as provided under clause (c) of section 18 of the NAB Ordinance.
Similarly, the obligation is cast upon the NAB chairman, in terms of section 18 (g) of the NAB Ordinance, to decide, by independent application of his mind, that whether it would be proper and just to proceed further and there is sufficient material to justify filing of a reference against a specific person.
However, as is abundantly clear from the record, no such exercise was ever undertaken in the instant case and the jurisdiction in the matter has been assumed without any judicial application of mind. As such, the impugned proceedings are bad in law and void ab initio, having been initiated in utter disregard of the mandatory provisions of the NAB Ordinance, thereby rendering the entire proceedings pursuant thereto illegal and void under law.