Petitioner Hans Afzal being in jail has instituted the instant writ petition under Art.199 of the Islamic Republic of Pakistan, 1973 praying his release from jail by allowing him post arrest bail in an A.C.R.
No,62 of 2008 titled State v. Sh. Muhammad Afzal etc.
2. Conspectus of the reference is that the petitioner along with his accomplices fraudulently obtained pecuniary advantages/benefits by dishonour and illegal means from the Bank of Punjab.
The NAB authorities when issued notices to the petitioner and on being arrested on 18.11.2009 prior to the finalization of the investigation against him prepared to Voluntary Return under section 25-A of the National Accountability Ordinance, 1999 to the Chairman, NAB, Islamabad whereupon a detailed report was prepared as to the properties in question and the NAB sequently agreed to accept Voluntary Return on behalf of the petitioner and the matter was brought to the Accountability Court-V, Lahore where his statement was recorded compos mentis by de- handcuffing him. Its relevant excerpts are reproduced as follows:- "I with my free consent and without any coercion, duress or undue influence, voluntarily came forward and submitted application for voluntary return Mark "T" to the Cnairman NAB. I have been conveyed the acceptance of my said application through letter dated 10.2.2010 which is Mark "U". I admit the contents of my above said application and undertake to abide by the terms and conditions stipulated in the above said letter Mark "U".
The NAB authorities had provided details of the liabilities of the petitioner in its report as under:- "I shall surrender titled documents along with any other documents of all the above said movable/immovable assets to the Bank of Punjab. I undertake to execute General Power of Attorney/NOCs and any other documents in respect of the above said movable and immovable assets in favour of the Bank of Punjab for transfer/disposal of the same. I also undertake to appear and make statement before any court of law or any other forum for transfer of above said assets in favour of BOP. I also undertake that in case any other asset/property/valuable is found to be owned by me in future, I shall be liable to surrender the same immediately".
The accused had been handcuffed again after recording statement on 11.2.2010.
In pursuance of the statement of the petitioner, learned Accountability Court No,V, Lahore granted post arrest interim bail vide order dated 11.2.2010. The relevant paragraphs of the order are pen down as under:- "Accused Haris Afzal made his statement according to the contents of VR application moved by him and owned the terms and conditions contained in EBM dated 10.2.2010 by means of which proposal for VR has been approved by the competent authority.
Keeping in view the VR application of the accused, his statement, EBM dated 10.2.2010 approving the VR proposal and terms and conditions contained therein, accused Haris Afzal is ordered to be released on interim basis".
The petitioner allegedly infringed the VR stipulation; he was summoned through notice but did not appear. He also sought protection from the Hon'ble Islamabad High Court, Islamabad. In pursuance of non-bailable warrants of arrest, he was arrested on 20.11.2015. Hence, instant petition.
3. The notice to the respondents was issued and also obtained their parawise comments and reply to this petition.
4. Learned counsel for the petitioner exquisitely has argued that principal-accused in the whole transaction is Sh. Muhammad Afzal who was granted post arrest interim bail by the Hon'ble Supreme Court of Pakistan vide order dated 15.7.2014 in CP No,768-14, the same was confirmed vide order dated 11.9.2014 whereas the petitioner has nothing to do with the alleged transactions of fraud; the petitioner has fulfilled all liabilities owned by him through VR, never absconded, in fact, he was never served personally, he had already surrendered his Passport in year, 2009, his name was enlisted in ECL since then and prior to his arrest on 20.11.2015 he never tried to tamper or hamper the proceedings of the NAB or of the learned trial court; the case of the petitioner stands on identical footings with the case of co-accused Sh. Muhammad Afzal rather stands on better footing; the order of bail handed down by the Hon'ble Supreme Court of Pakistan is intact; the petitioner after his arrest by second time again endured 14 days physical remand but nothing could be recovered favourable by the NAB authorities and so far the properties belonging to the petitioner at Dubai, he did nothing with the same because the petitioner had already handed over the same to the NAB authorities and the authorities in collusion with the other persons disposed of the same by their own whims, actions thereof are penalable even now the petitioner is ready to co- operate with the authorities for the liabilities liable to be fulfilled by him. Further argued that remaining of the petitioner in incarceration would not advance the prosecution version and NAB authorities have infringed fundamental rights of the petitioner by curtailing his liberty/freedom.
Learned counsel at the conclusion of her arguments undertakes to fulfil the outstanding liabilities of the petitioner within the framework of law. At one point of time, it has also been argued that petitioner had some problem in his leg, owing to it is bed-stricken and being aged 22 years he may be released from jail by accepting instant petition.
5. Learned counsel for the Bank of Punjab has submitted that so far as the VR as to the properties available in Pakistan is concerned, no complaint exists, the petitioner complied with his commitment but as to the properties, movable and immovable in United Arab Emirates, the petitioner has disposed them of fraudulently deceiving the NAB authorities. Further argued that petitioner appointed Ahmad Bakhat Faraj Mobarak Allanjawi holder of U.A.E Passport No,A2005930, his attorney and authorized him as to the property belonging to him there to dispose it of, the details whereof have also been referred to in the Voluntary Return sanction made by the NAB authorities. Further argued that Villa No,1-W-49, Emirates Hill Third (6604), Dubai, situated at plot No,6604 measuring 17334 sqft. Acquired by the petitioner has also been disposed of through the said attorney; the bank cheques amounting 40,00,000/- Dhirham was in the name of Haris Afzal who further endorsed it in favour of Ahmad Bakhat Faraj Allanjwi (attorney), in this way, the petitioner has not only violated the condationalities of VR but also fraudulently cheated and caused colossal loss to the Bank of Punjab and has also become daring-do in flouting and disregarding the order of the court. Learned counsel at the conclusion of arguments has expressed deep concern that if the petitioner released on bail, he may go to underground.
Learned counsel for the NAB authorities fortifying the arguments of learned counsel for the Bank has submitted that the act of the petitioner is depredatory and is also liable to be prosecuted under the relevant provisions of NAB Ordinance on account of his dereliction by effrontery and he has, too, not come to the court with clean hands, therefore, instant petition may be dismissed.
6. Tripartite arguments heard intently. File gone through by peerage.
7. As to AC.R No.62, proceedings therein have not been denied by the parties. Voluntary Return under section 25-A of the National Accountability Ordinance, 1999 was completed on the application of the petitioner and then by his statement recorded by the learned Accountability Court-V, Lahore on 11.2.2010, pursuance to this, the petitioner was allowed post arrest interim bail vide order dated 11.2.2010, the details of the properties in and outside of Pakistan were accepted by the petitioner prepared by the NAB authorities and the petitioner accepted the same in his Voluntary Return statement before court then his liabilities unto the properties available in Pakistan were fulfilled but the properties available in UAE, he in a imprudent way disposed of the same, particularly, the Villa in question situated at Emirates Hill Third (6604) through his attorney namely Ahmad Bakhat Faraj Allanjwi and its sale-price was paid through a bank cheque in favour of the petitioner who further endorsed on the cheque in favour of his attorney. Petitioner has badly failed to comply with the commitments by his VR transactions; he has misused the concession of interim post arrest bail willfully. The commitments as to the properties movable and immovable, the details whereof have been mentioned in the report of NAB authorities are yet to be disposed of. If a lawful commitment is bound to breach penal action otherwise would encourage lawlessness. It was expected that petitioner would have been complementary to the authorities but he has been noticed behaviorally aberrant and imprudent. Liberty/freedom of a subject is very precious and the same cannot be curtailed by lame-excuses as it is said that: "the right to life of a citizen cannot be put in abeyance on his arrest."
But at the same time, it is markedly described that:- "the law should not be seen to sit by limply, while those who defy if go free, and those who seek its protection lose hope".
The petitioner remained out of scene for more than half a decade. Prodigious amount of public is involved, liable to be recovered from the petitioner by disposing of the properties. Considering all the facts and circumstances of the case discussed above, sequently, the court is of the humble view that instant petition lacks merits to be allowed, thus, yielded in dismissal.