AHMED ALI M. SHAIKH, J.---Through this Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioner seeks bail pending investigation/trial under the National Accountability Ordinance, 1999.
2. Brief facts of the case are that petitioner on 7.12.1986 was appointed as Assistant Controller of Buildings, Karachi Building Control Authority (now Sindh Building Control Authority) and was promoted as Director, Korangi Town, Sindh Building Control Authority (BS-19). However, on 30.12.2013, in terms of Removal from Service (Special Powers) Sindh Ordinance, 2000, major penalty of compulsory retirement was imposed upon him by the Sindh Building Control Authority.
3. Prior to imposition of major penalty of compulsory retirement, in October 2009, NAB, on receipt of an anonymous complaint, initiated an inquiry against the petitioner and he appeared before Additional Director Coord. (1W-1), NAB, Karachi, Respondent No.3. During course of investigation/inquiry NAB handed over proforma seeking details of incomes and assets of the petitioner and petitioner provided said information about his income and assets as on 15.1.2010. He on 25.9.2012 recorded his statement before the NAB and again- provided details of properties, purchased/sold by him and or his wife. In the meanwhile, on 2.3.2012 NAB also offered Voluntary Return option to the petitioner but, according to the petitioner, as no case was made out against him said complaint was referred to Anti-Corruption Establishment, Government of Sindh. On 13.9.2012 Director, ACE, Sindh, constituted a Committee to conduct inquiry into the complaint against the petitioner that he accumulated a number of properties by misusing his official powers and partnerships with builders in many projects of Karachi. However, vide letter dated 15.10.2012, Director, Anti Corruption Establishment Sindh, informed the Chief Secretary/ Chairman ACC-1, Government of Sindh, Karachi, that after inquiry the Committee recommended for placing the matter before ACC-I seeking orders for departmental action against the petitioner as being a Government Servant he has failed to file Annual Declaration Form and also failed to obtain permission for sale/purchase of properties from competent authority, while on 4.12.2012, Section Officer (C-I), Services, General Administration and Coordination Department, Govt. Of Sindh, informed the Deputy Director Coord (1W-I), NAB, Karachi, that no loss was sustained to Government Exchequer. Consequently, on 9.4.2013, the NAB (Sindh), Karachi, informed the Desk Officer, NAB HQs, Islamabad that no further action seems required on the issue as the matter has been referred to the Chief Secretary, Sindh for taking departmental action against the petitioner.
4. Petitioner further claimed that after lapse of one year, on 15.5.2014 the respondent No.3 illegally and without lawful authority and cause issued a notice to the petitioner giving an option to the petitioner to voluntary return the gains or assets acquired by him beyond his known sources of income during service tenure. The petitioner on 13.6.2014 submitted a reply but despite that respondent No.3 started constantly calling the petitioner on weekly basis for inquiry and kept leveling false and frivolous allegations, pressurizing and harassing the petitioner. Accordingly, on 8.7.2014 petitioner filed CP No.D-3637 of 2014 against the respondents/NAB and this Court on 18.3.2015 passed an order directing the official respondents not to take any action in violation of law or NAB Ordinance against the petitioner.
5. According to memo of petition, on 18.5.2015, pursuant to an arrest warrant issued by the Chairman NAB, the respondent No.3 arrested the petitioner from his house and on 19.5.2015 produced the petitioner before Administrative Judge, Accountability Court, Karachi, who without appreciating the provisions of section 167(5), granted 15 days remand. The petitioner further claimed that he has never concealed any assets from the investigating agency and declared all his and family assets and belongings via tax returns, therefore, he was not obliged to file Assets Declaration Form and or seek permission for sale/purchase of properties from the department.
Petitioner further claimed that respondents without any reason even before the commencement of inquiry placed his name on ECL against which petitioner has filed CP No.D-3775 of 2014 before this Court.
6. Notices of instant petition were issued to the respondents and on 23.6.2015, NAB filed comments denying the allegations leveled in the memo of petition. Respondents maintained that as a sequel to departmental inquiry, major penalty of compulsory retirement from service was imposed upon the petitioner and during inquiry conducted by NAB it was revealed that petitioner has accumulated assets beyond his known sources of income and has made properties both in and outside the country. The NAB further claimed that petitioner was offered to avail Voluntary Return option under section 25(a) of the Ordinance which he failed to avail, therefore, he was arrested and not entitled to grant of bail as provisions of section 497, Cr.P.C. Are not applicable in terms of section 9(b) of National Accountability Ordinance, 1999.
7. Mr. Rasheed A. Rizvi, learned counsel for the petitioner submits that on 5.10.2009, on a false anonymous complaint, NAB initiated an inquiry against the petitioner for accumulating assets beyond his known sources of income. But on account of lack of jurisdiction the matter was referred to Anti-Corruption Establishment, Sindh and the Committee of Anti-Corruption Establishment, Sindh, after detailed and thorough inquiry arrived at a conclusion that no loss was sustained to the Government Exchequer, which conclusion was endorsed by NAB Sindh as well vide letter dated 9.4.2013 and held that no further action seems required on the issue.
8. Learned counsel further contended that on 15.5.2014 NAB on same set of allegations again initiated inquiry, offered petitioner to accept voluntary return option and on account of continued harassm ent and pressure, petitioner filed CP No.D-3637 of 2014 and, this Court while restraining the official respondents from harassing the petitioner directed the NAB to complete inquiry/investigation within three months, which order was not complied with and contrarily on 18.5.2015 he was taken into custody and since 10.7.2015 he is in judicial custody.
9. According to learned counsel on 15.8.2015 NAB Sindh has filed a Reference against the petitioner and in paragraph No.3 the NAB alleged that during service petitioner purchases more than 17 properties inside Pakistan and 07 in United Arab Emirates and he has invested an amount of Rs.25,71,88,790/- in his own name and in the name of his wife but the respondent has not produced any material to establish misuse of authority by the petitioner in his capacity as Director, Korangi Town, Sindh Building Control Authority. He further submitted that NAB in the Reference has stated that details of foreign investment and properties purchased in and outside Pakistan are yet to be collected and a supplementary reference will be filed on the basis of evidence collected during further investigation, therefore, case of the petitioner requires further inquiry as till date NAB has failed to collect sufficient material against the petitioner connecting him with the commission of the offence punishable under section 10 of the National Accountability Ordinance.
10. He further submitted that it is alleged in the Reference that during his service tenure from 1986 to 2013 petitioner along with his family members travelled abroad more than 71 times, however, only ten foreign tours were disclosed in the investigation report. He also contended that mere possession of any pecuniary resources or property is by itself not an offence and in case the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties. Per learned counsel in view of above and of the fact that in wake of recommendations of Committee of Anti- Corruption Establishment Sindh and letter dated 4.12.2014 of Government of Sindh, the respondent No.3 opined NAB Headquarters that no further action seems required on the issue, case of the petitioner requires further inquiry and he is entitled to the concession of bail. In support of his contention, learned counsel has relied upon the cases of Khalid Aziz v. The State (2011 SCM R 136), Ghani-ur-Rehman V. NAB (PLD 2011 SC 1144), Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408), Syed Qasim Shah v. The State (2009 SCM R 790), Muhammad Nawaz v. The State (PLD 2008 SC 438) and unreported judgment dated 15.7.2015 passed in the case of Dhani Bux Khuhro v. National Accountability Bureau Sindh (C. P. No.D-256 of 2015) and judgment/reasons date 16.7.2015 passed in the cases of Badar Jameel Mandhro v. The State (C. P.
No.D-3322 of 2015) and Khadim Hussain Channa v. The State (C.P. No.D-3323 of 2015) by this Court.
11. On the other hand, Mr. Noor Muhammad Dayo, ADPG, NAB while opposing the bail plea of the petitioner argued that admittedly the petitioner has been punished departmentally as major penalty of compulsory retirement was imposed upon him. He further submitted that during his service tenure petitioner, inter alia, has purchased a number of properties in various parts of Karachi, valuing at Rs.45.42 Million, claimed foreign remittance in his wife and his name amounting to Rs.17.343 Million from relatives living abroad, which is quite implausible for a Government Servant of BS-18/19; and that his wife owns 65% shares in Mehran Food Company Private Limited, which comes to Rs.4.55 Million while his total income/savings during alleged period of service tenure comes to Rs.31.436 Million. According to learned ADPG, NAB, an opportunity was provided to the petitioner to voluntarily return Rs.36 Million but did not avail the same. He further argued that Government Officer is duty bound to file Annual Declaration Form and get permission before purchase of property and by deliberately avoiding to do so, petitioner has misused his authority and the incriminating material collected by the NAB during inquiry/ investigation, prima facie, connects the petitioner with the commission of alleged offence.
12. He further argued that petitioner in his statement dated 25.9.2012 has claimed that his wife is doing the business the sale/purchase of properties and made investment with others valuing Rs.32,55,5000/- while in the tourist visa dated 1.2.2009 issued by the Ministry of Interior, UAE, Mrs. Misbah Nisar was shown house wife. He lastly argued that provisions of section 497 are not applicable under the National Accountability Ordinance, 1999, therefore, instant petition be dismissed.
13. We have heard the learned counsel for the petitioner, ADPG, NAB and scanned the record. From the record placed before us, it appears that in 2012 NAB initiated inquiry against the petitioner in relation to properties purchased/sold by him and his wife. Later on NAB gave Voluntary Return option to the petitioner to which he refused and subsequently the matter was referred to Anti- Corruption Establishment, Government of Sindh. Thereafter, a committee was constituted to inquire into allegations leveled against the petitioner that he purchased a number of properties by misusing his official powers and partnerships with builders in many projects of Karachi. However, vide letter dated 15.10.2012, Director, Anti-Corruption Establishment Sindh, informed the Chief Secretary/Chairman ACC-I, Government of Sindh, Karachi, that after inquiry the Committee recommended for placing the matter before ACC-1 seeking orders for departmental action against the petitioner as being a Government Servant he has failed to file Annual Declaration Form and also failed to obtain permission for sale/purchase of properties from competent authority. On 4.12,2012, Section Officer (C-I), SGA&CD, Govt. Of Sindh, informed the Deputy Director Coord. (1W-I), NAB, Karachi, that no loss was sustained to Government Exchequer and in wake of such report, on 4.9.2013, NAB (Sindh), Karachi, informed the Desk Officer, NAB HQs, Islamabad that no further action seems required on the issue as the matter has been referred to the Chief Secretary, Sindh for taking departmental action against the petitioner.
14. It also appears that under somewhat similar allegations NAB Sindh has filed a Reference against the petitioner and alleging therein that during service petitioner purchased properties in and outside Pakistan and has invested millions of rupees in his own name and/or in the name of his wife but the I.O. Has not produced any material to establish misuse of authority by the petitioner and NAB in the Reference has stated that details of foreign investment and properties purchased in and outside Pakistan are yet to be collected and a supplementary reference will be filed on the basis of evidence collected during further investigation.
15. In the case of Khalid Aziz v. State reported in 2001 SCMR 136, Full Bench of the Honourable Supreme Court, while dilating upon the provisions of section 9(a)(v) of the Ordinance, referred to the following observations of this Court in the case of Hakim Ali Zardari v. State (2007 M LD 910):- "In order to prove the case, the prosecution is required to prove the ingredients of the offence, which are (1) it must establish that the accused was holder of a public office, (2) the nature and extent of the pecuniary resources of property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. Known to the prosecution after thorough investigation and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence as defined under section 9(a)(v) is complete, unless the accused is able to account for such resources or property.
Thus, mere possession of any pecuniary resources or property is by itself not an offence, but it is failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence. If he cannot explain, presumption under section 14(c) of the Ordinance that accused is guilty of corruption and a corrupt practice is required to be drawn. Reference is invited to a case Biswa Bhushan Naik v. State (AIR 1954 SC 350) in which identical provision in Prevention of Corruption Act, 1947 were interpreted."
16. No doubt there are allegations that petitioner while in service has purchased/sold a number of properties, either owned by him or his wife or relations, however, as laid down in the aforesaid reported Judgment, the prosecution has to prima facie establish (1) that accused is holder of a public office, (2) nature and extent of pecuniary resources of property which were found in his possession, (3) that what were his known sources of income i.e. Known to the prosecution after thorough investigation and (4) that quite objectively such resources or properties found in possession of the accused were disproportionate to his known source of income. Comments furnished by the NAB reflect that prosecution has yet to complete investigation and will file supplementary reference against the petitioner after doing so.
17. It is settled principle of law that mere gravity or heinousness of an alleged offence is not sufficient to keep a person facing trial behind the bars indefinitely as of punishment. Additionally, personal liberty, a valuable constitutional right, cannot be curbed except in accordance with the procedure established by law in order to strike a balance between the right to individual liberty and the interest of society. Moreover, considering the facts and circumstances of each case, the court can impose different conditions which are necessary to ensure that the accused will be available for facing the trial.
18. As far as allegations of the prosecution are concerned, the prosecution is at liberty to adduce evidence at the time of trial. Besides, as to the properties in possession of the petitioner or in the name of his spouse or relatives, Section 23 of the National Accountability Ordinance, 1999, provides a complete mechanism against the transfer of those properties, subject matter of the Reference pending adjudication before the trial Court.
19. Yet there is another aspect of the case that while in service the petitioner under the same set of allegations has faced inquiries and investigations but he was exonerated by the NAB. So far as the allegation that during his service tenure from 1986 to 2013, petitioner along with his family members travelled abroad more than 71 times, the prosecution could only disclose ten foreign tours in the investigation report.
20. In view of our above discussion, we are of the considered view that unless sufficient material, prima facie, connecting the petitioner with the commission of alleged offence, is collected he cannot be kept behind the bars indefinitely waiting for the prosecution to collect more and more evidence.
21. Consequently, petitioner is granted bail subject to his furnishing surety in the sum of Rs.2 Million (two million) and PR bond in the like amount to the satisfaction of the trial Court. Besides the petitioner shall deposit his original valid passport with the Nazir of this Court while Secretary, Ministry of Interior, Government of Pakistan, is directed to place the name of petitioner on Exit Control List till final adjudication of the Reference by the trial Court.
Petition stands disposed of on above terms.