JUDGMENT SH. AHMAD FAROOQ, J.---Through the instant petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for declaring the order dated 27-4-2011 as illegal, whereby the learned Judge Accountability Court No. IV, Lahore has remanded him to judicial lock-up. The petitioner has also sought his post-arrest bail in an enquiry, which has been authorized against him by the Chairman, NAB, under section 18(c) of the NAB Ordinance, 1999, vide letter dated 13-1-2011, on the allegations of corruption and corrupt practices.
2. The facts essential for the adjudication of the lis in hand are that pursuant to authorization of enquiry by the. Chairman, NAB and the Director-General, NAB, Punjab, vide letters dated 13-1-2011 and 14-1-2011, respectively, an enquiry was initiated against the petitioner and his relatives, wherein it is alleged that the accused/petitioner has committed the offence of misappropriation of an amount. Of Rs.29.4 million by receipt of 21 plots against illegal transfer of Property No.1-E-III, Gulberg III, Lahore, vide Sale-deed No.247, dated 16-12-2006 and Sale-deed No.248, dated 16-12-2006. The petitioner is also alleged to be the owner and in possession of 21 plots, located in Pak Arab and River Edge Housing Societies, as "Benamidar" of his brother-in-law, namely, Hammad Tikka. The petitioner claimed that he never invested any amount in the business of Sh. Ayub and Mohsin Ayub.
During the course of enquiry, the petitioner submitted an application for voluntary return, under section 25 of the National Accountability Bureau Ordinance, 1999. However, the petitioner was arrested on 15-3-2011, and after expiry of physical remand for a total period of 42 days, he was ordered to be sent to judicial lock up by the learned Judge Accountability Court No. IV, Lahore, vide order dated 27-4-2011. Hence, the instant petition.
3. Respondents Nos.1 to 3 submitted their report and parawise comments, wherein they contended that the petitioner has committed an offence falling under section 9(a) of the National Accountability Bureau Ordinance, 1999 and the schedule attached thereto, which is punishable under section 10 of the Ordinance ibid. They further contended that Adil Saleem/present petitioner was arrested during the enquiry proceedings in respect of illegal transfer of Property No. Gulberg- III, Lahore, commonly known as "Qasr-e-Zauq", vide sale-deed dated 16-12-2006, which was executed in violation of section 23 of the NAB Ordinance, 1999 as well as a stay order granted by this Court. The respondents alleged that the present petitioner has misappropriated an amount of Rs.29.52 million in the form of 21 plots, located in River Edge and Pak Arab Housing Societies. They further alleged that out of 21 plots, 16 have been transferred by the present petitioner and the sale proceeds thereof have been misappropriated.
The learned counsel for the petitioner submitted that the petitioner had not only voluntarily surrendered all the documents pertaining to the remaining 5 unsold plots, situated in River Edge and Pak Arab Housing Societies, but had also submitted an application for voluntary return in respect of the remaining 5 unsold plots prior to his arrest. The learned counsel for the petitioner further submitted that the consideration amount of 16 plots was received by Hammad Tikka, who is a brother-in-law of the present petitioner and has also filed an independent application dated 10- 3-2011 for voluntary return under section 25 of the NAB Ordinance, 1999 to the Chairman, NAB/Director-General, NAB, Punjab, Lahore. The learned counsel 'contended that the petitioner is only a ' Benamidar' and no offence is made out against him, falling within the mischief of any provision of NAB, Ordinance, 1999. The learned counsel claimed that the petitioner is not involved in any manner in the alleged illegal transfer of the property known as "Qasr-e-Zauq". He argued that the petitioner is entitled to be released on bail as he is no more required in enquiry proceedings being conducted by NAB, Punjab. He lastly argued that the petitioner is an Advocate by profession since the year 2000 and a previous non-convict.
4.
5. Arguments heard. Record perused.
6. The petitioner has been arrested during the enquiry in respect of the alleged commission of an offence under section 9(a) of the NAB Ordinance, 1999 and the schedule attached thereto, which is punishable under section 10 of the NAB Ordinance, 1999. Nevertheless, neither the enquiry has been completed nor a Reference, as provided under section 18(g) of the NAB Ordinance, 1999 has so far been filed. Section 25 of the Ordinance ibid provides for the voluntary return of the assets or gains acquired by any person as a consequence of any offence under the Ordinance, prior to the authorization of the investigation against him. Admittedly, the present petitioner has submitted a request for acceptance or his offer for voluntary return, vide application dated 11-2-2011 but the same has not been decided so far, as presently, office of the Chairman, NAB is vacant. Ordinarily, an offer for the voluntary return is accepted subject to down payment of 34% of the total liability, within one month of the approval of the competent authority, and payment of balance amount, in two equal instalments (33% each), within a period of six months of the down payment, according to the policy of NAB, circulated through letter dated 12-8-2009. According to the NAB Authorities, the petitioner has already sold 16 plots, out of 21 plots, in consideration of Rs.2,19,78,230. The petitioner's claim that the sale proceeds of 16 plots have been received by the co- accused/Hammad Tikka cannot he accepted at this stage as no property could be sold without the consent and participation of the owner i.e. Petitioner. The fact of the matter is that the offer of the present petitioner for voluntary return could not be processed and decided by the competent authority due to the vacant office of the Chairman, NAB. Admittedly, the petitioner is behind the bars since 15-3-2011 and he cannot be made to suffer due to inaction on the part of NAB Authorities on his offer of voluntary return. Hence, we are of the view 'that the petitioner could be released on bail on the analogy of the parameters laid down in the policy of the NAB, dated 12-8-2009 in respect of the cases of voluntary return. Even otherwise, post-arrest hail cannot be refused to an accused as a measure of advance punishment.
7. In ' view of above, the instant petition to the extent of post arrest bail is accepted and the petitioner is ordered to be released on bail subject to fulfilment of the following conditions:
(i) Down payment of Rs.74,72,598 within one month as 34% of the total sale proceeds of 16 plots worth Rs.2,19,78,230, in the shape of pay order/demand draft in the name of the Chairman, NAB.
(ii) Transfer of remaining 5 unsold plots in the name of Chairman, NAB through validly executed, transfer deed, within period of one month.
(iii) Furnishing of bail bond in the sum of Rs.500,000, with two sureties, each in the like amount, to the satisfaction of the learned Administrative Judge, Accountability Court, Lahore.
8. As far as, the prayer of the petitioner for declaring the order of the learned Judge, Accountability Court No.IV, Lahore dated 27-4-2011, as illegal, is concerned, the same is devoid of merit and the instant petition to this extent is dismissed.
9. Before parting with this order, we would like to direct the Chairman, NAB, as and when appointed, to decide the application of the present petitioner for voluntary return, within one month from the date of assumption of the office. The Chairman, NAB would also decide about the balance payment of the determined liability by the present petitioner in accordance with their policy dated 12-8-2009..