1. MUNIB AHMED KHAN, J.--- This constitutional petition has been filed against the National Accountability Bureau (NAB) with the prayer that the petitioner may be granted bail before arrest as he is apprehending his arrest, as a Reference has been filed by NAB against him in the Accountability Court. The petitioner has claimed to be a hardworking Grade-21 officer in C.B.R. And was working diligently but was suspended on 28-5-2000, which suspension was contested by him in constitutional petition.
2. ' The allegations under the Reference, the subject-matter of this petition, are that during his service from 1985 to 2001, the petitioner operated sixteen bank accounts in the name of his wife Shahnaz Abrar, eight accounts in the name of Zahida Abrar, which is fake person, six in the names of his other family members, namely Zohar Abrar, Waqar Ahmed, Anis Ahmed, Kashif, Farida, Shaukat Riaz, in total there were thirty-two accounts and after deducting inter account transactions and routing of money, amount in these accounts comes to Rs,103,441,799. It has also been alleged that although Shahnaz Abrar, wife of the petitioner, was tax-payer but her declared business do not match with the huge bank credit, hence, apparently the accounts have been swelled with ill-gotten money by the petitioner. It has further been alleged that petitioner purchased 15 immovable properties, mostly commercial plots in DHA, Karachi, in the name of his wife from time to time and sold out come out of them, and that the wife of the petitioner is main beneficiary )f a sum of Rs.40,891,994, invested in Crescent Investment Bank against Foreign remittance for which there were no justification. It has further been alleged that the petitioner got issued a fake and forged NIC No.501- 53-549608 in the name of Zahida Abrar, showing her as his wife, whereas the record of Nadra shows that Zahida Abrar, in fact does not exist. The petitioner, on the basis of fake NIC, opened eight bank accounts in the name of Zahida Abrar, seven of them jointly with his family members. In these accounts petitioner deposited Rs.25.79 million and through the evidence, it has been established that from 1985 to 2002, the petitioner has accumulated approximately Rs.152,453,365 through illegal means, which amount is disproportionate to his source of income, D therefore, the petitioner has been charged under section 9-a(v) of National Accountability Ordinance, 1999, punishable under section 10 thereof'.
3. ' Mr. Raja Qureshi, learned counsel for the petitioner has argued that the wife of petitioner, namely Shahnaz Abrar is tax-payer and petitioner has disclosed his earning in his Annual Tax Return and that in prior inquiry conducted by the F.I.A., petitioner was absolved of any allegation. He has further submitted that there is no allegation of corruption against him and all the properties pointed out by NAB, have been mentioned in income-tax returns as well as in wealth tax returns regularly. He has further argued that NAB Authorities have forgotten to take into account that wife of the petitioner is tax-payer since long and has an independent status and if an audit is conducted, then assets will match with her income. He has submitted that the case of the petitioner does not fall within the meaning of section 9(a)(v) of National Accountability Ordinance, as the property is not disproportionate to his non-income and he can account for all the properties. He has further argued that his wife was running three business, including a construction company and that his children were also not dependent upon him and that in this given situation, at the most, the petitioner can be subjected to income-tax provisions but not under the NAB Ordinance. He has further submitted that the figures of the amount, given in the reference, are presumptive and cannot be proved; and that encashment of FEBC, availing of the benefit under the amnesty scheme, foreign remittance and encashment of USD Bonds have wrongly been termed as unexplained. He has submitted that due to malice on the part of NAB Authorities, it is after him and that there is mala fide on the part of the respondent. Lastly, he has given explanation in respect to Zahida Abrar, which has been shown as fake person by the NAB by stating that Zahida Abrar is a nickname of Shahnaz Abrar, the wife of the petitioner. On the other hand, Mr. Shafaat Nabi Khan Sherwani, learned Deputy Prosecutor-General Accountability, has filed parawise comments on behalf of NAB and has submitted that Reference of the Nab has been prepared after due inquiry and investigation and that the properties and banks accounts, pointed out under the Reference, have not been disputed by the petitioner but besides, he has failed to prove justification in holding huge immovable properties and other assets as well as operation of thirty-two accounts in different banks and that in the circumstances, the burden is now shifted under section 14(c), National Accountability Ordinance upon the petitioner to justify holding of huge properties in his name as well as in the name of his family members. He has submitted that the explanation given by the petitioner regarding Zahida Abrar by saying that the same is a nickname of his wife Shahnaz Abrar is totally incorrect as all the accounts in the name of Zahida Abrar have never been disclosed while the petitioner has obtained a fake NIC in that name and actually, he himself was operating account in the name of Zahida Abrar. He has further submitted that even if debits and credits are adjusted in summary way, as claimed by the petitioner, then even a sum of Rs.103.37 million comes to his thirty-two banks accounts. He has further submitted that amounts, which have been disclosed in tax return of his wife, are much lower then what has been investigated and that the alleged business of wife of petitioner are fake business as after the investigation it is found that A.B. Poultry, claimed by the petitioner's wife on Plot No.P.1, Block 5, F.B. Area, Karachi, was not in existence as the said plot was sold out in 1992 to Seth Abdul Rashid Soorti but the same was continuously shown before income-tax authorities as business address of A.P. Poultry and that construction company, of which income has been propagated, has always been shown in loss before the income-tax authorities except under Tax Amnesty Scheme, 2000. He has further submitted that the alleged income of the petitioner's wife from the disclosed business do not match with huge amount shown under the Reference. He has further submitted that money accumulated by the petitioner's 2004 SCMR 1889.
4. After hearing the learned counsel, we ourselves, inquired from the petitioner who was present in person, as to who is Zahida Abrar and why her nickname does not appear in income-tax return and other documents and whether, being Government officer, he fulfilled the procedural requirement of changing the name of his wife or there is any proof that actually the name has been changed but he could not submit in reply nor he submitted any educational and other documents of his wife to prove his contentions. He could not satisfy the Court, as to why the accounts maintained in the name of Zahida Abrar were not disclosed in the returns of Shahnaz Abrar. At the moment, the Reference in the Accountability Court has already been tiled and naturally the Court would take legal action including the arrest of the petitioner, which cannot be termed as mala fide, as the work of Nab has already been over by filing Reference but they have not forwarded the petitioner to the Accountability Court in terms of section 18(g) of NAB Ordinance read with section 170, Cr.P.C. As held by the Honourable Supreme Court in paragraphs 275 and 276 in the case of Asfandyar Wali v. The State PLD 2001 SC 607, at the time of filing of Reference. In the instant petition, various things are to be answered by the petitioner, including position of holding fake NIC and thereafter using it for opening bank accounts:The petitioner has admitted that the accounts in the name of Shahnaz Abrar and Zahida Abrar were maintained in different banks, therefore, prima facie offence, as alleged appears to have been made out. Even if NIC has been changed then all the accounts of Shahnaz Abrar must come to stand still and transferred in the name of Zahida Abrar. In such a situation instead of opening new Accounts of Zahida Abrar, title of the bank account of Shahnaz Abrar could have been changed by simply moving such applications before the concerned banks, which has not been done but allowed the accounts to operate under two different titles, which apparently shows the guilty conscious of the petitioner. The record of tax return shows that petitioner's wife has maintained her name as Shahnaz Abrar and not Zahida Abrar and that accounts maintained by Zahida Abrar has not been subjected to tax authorities nor the income of Shahnaz Abrar, as shown in the Reference that have been supported by positive evidence, to controvert the findings of the Investigating Officer, on the basis of which the Reference has been prepared. We are refraining to give finding or dilate upon other pleas of the parties at this initial stage as it involves deeper examination of material and if done, it will prejudice the rights of the parties.
5. Apart from above position, it is pointed out that the petition has been filed for grant of pre-arrest bail. The criteria, for grant of pre-arrest and after arrest are different. In the former case, the main consideration for grant of pre-arrest bail is that the intended arrest by the police is with mala fide intention in order to harass and humiliate the petitioner. The Honourable Supreme Court has considered the point from the year 1949, in the case of Murad Khan v. Fazle Subhan PLD 1983 SC 82, a Bench of four Honourable Judges after considering various decisions at pages 83 and 85 observed as under:-- "As would be presently shown, it is not necessary to examine the merits of the case for grant of bail because it might prejudice either party in fresh application, one of the principles which has often been emphasized by this Court as a pre-condition for grant of anticipatory bail is that "it is not the rule in criminal cases and in order to justify the grant of such (anticipatory) bail the petitioner much show that he apprehends his arrest on account of ulterior motives. ....
6. ' The foregoing resume of the case-law since 1949 and the recent trend of authority would show that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other ulterior reasons before granting pre-arrest bail."
7. ' Yet in another case of Ajmal Khan v. Liaqat Hayat, PLD 1998 SC 97, the Honourable Supreme Court took the similar view in the case in which pre-arrest bail was granted by trial Court, confirmed the High Court and observed as under:-- "No doubt the prosecution has submitted the challan against the respondents in the Court. There is also no cavil with the proposition that this Court has held that normally this Court does not interfere with the order of the High Court regarding bail in case in which either the challan has been put in the Court and the trial is likely to-commence shortly or the trial has begun."
8. ' After above observation, the Honourable Supreme Court interfered with the orders of the High Court and cancelled the bail.
9. In the present case the Chairman, NAB has filed the Reference, the Court has taken the cognizance and issued non-bailable warrants for the arrest of petitioner. Thus, the NAB Authorities, or police are not arresting the petitioners on their own, but they are doing so under the orders of the Court, which they are bound to carry out. Thus, there is no mala fides on the part of police to arrest the petitioner, as such police is not arresting him with ulterior reasons or motive. Further no mala fide can be attributed against the Court in getting the petitioner arrested. As such the pre-condition for the grant of pre-arrest bail, as held by the Supreme Court in the case 'of Murad Khan (supra) is not available.
10. ' We are of the opinion that on the .Basis of material placed on record, there are reasonable grounds to believe that the petitioner is involved in the case, therefore, the petitioner is not entitled to bail as elaborate sifting of evidence cannot be made at the time of tentative assessment while considering the pre-arrest bail.
11. Above are the reasons of our short order, dated 23-1-2007, by which we had dismissed the petition.