ZAHEER-UD-DIN KAKAR, J.---By this order, we intend to dispose of the above petition filed on behalf of the petitioners Muhammad Farooq Shah and Suleman Shah for grant of post-arrest bail in National Accountability Bureau (NAB) Reference No,2 of 2017. which was filed before Accountability Court-I, Quetta (the trial Court).
2. Precisely stated facts of the case as per NAB reference No,2 of 2017 are that on receipt of source report against petitioner No,1 (Farooq Shah), Assistant Excise and Taxation Officer (AETO)-IV, Excise and Taxation Department Quetta, wherein it was alleged that the petitioner No,1 has accumulated numerous assets that were beyond his known source of income through illegal activities/means.
After initial probe an inquiry was authorized which was subsequently converted into an investigation on 30.11.2016; that during the course of investigation it transpired that petitioner No,1 by means of corruption and corrupt practices accumulated numerous immovable assets, movable assets and bank accounts, mentioned in paras-6 and 7 of the reference, which he could not account for through his known source of income. Moreover the petitioner No,1 mlafidely and fraudulently, held some of his properties in the name of his sons Salman Shah (petitioner No, 2) and Noman Shah as Benamidars.
3. According to the Reference, the evidence collected during investigation establish that the petitioner No,1 being holder of public office accumulated huge assets/properties to the tune of Rs,107,448,318/- beyond his known source of income in his name and benamidars. Thus, he has committed the offences of corruption and corrupt practices as envisaged in section 9(a)(iv)(v) and (xiii) of the National Accountability Ordinance, 1999 (the Ordinance), punishable under section 10 of the Ordinance.
4. Learned counsel for the petitioners contended that the petitioners are absolutely innocent and have been falsely implicated in this case With-ulterior motives and mala fide intentions; that the petitioners during investigation gave each and every detail required to the investigation officer, who rather acting impartially as acted under malice and has submitted false Reference; that the Reference against the petitioners is on border-line of the standard operating procedure (SOP) set out by the Chairman NAB; that the reference against the petitioners is based upon documentary evidence which is in possession of the prosecution so question of tampering the same on the part of petitioners does not arise; that as the Reference has already been submitted before the trial Court and the petitioners are in judicial custody and they are not required for further investigation, as such, this is a case of further inquiry and they are entitled to be enlarged on bail.
5. On the other hand the Special Prosecutor NAB, vehemently opposed the petition and contended that the petitioners have been given a specific role in the reference and there is more than sufficient evidence on record to prove beyond a reasonable doubt that they (petitioners) have committed the offence and, as such, they are not entitled for post-arrest bail.
6.We have heard learned counsel for the parties and have gone through the available record. As per settled law on the grant of bail, we have only made a tentative assessment of the material placed before us and that this order shall not prejudice the case of any party at trial whose case shall be decided on merit based on the evidence produced before the trial Court. From perusal of the record it appears that petitioner, No,1 accumulated numerous assets which he could not account for through his known source of income and he malafidely and fraudulently transferred some of the properties in the name of his sons Selman Shah (petitioner No,2) and Noman Shah as Benamidars. Furthermore, there are huge amount of unexplained deposits/credits transfers in different accounts of petitioner No,1 and his Benamidars, which do not match with his or his sons known source of income. The frequent deposit of cash in the accounts of petitioner No,1 and his sons shows that he was allegedly involved in act of corruption and corrupt practices, which, in fact was the major source of his assets. Perusal of the record further reveals that during the proceedings of the investigation, analysis of bank accounts in the name of petitioner No,1 and his benamidars was obtained from banking expert and a cash flow chart was prepared by taking into account the income and expenses of petitioner No,1 and his benamidars.
7. In the case of Muhammad Hashim Babar v. The State (2010 SCM R 1697) the Hon'ble Supreme Court set out the ingredients of what were required to prove an assets beyond known source of income case under section 9(a)(v), of the Ordinance as under: "It is pertinent to mention here that in order to prove the case is the duty and obligation of the prosecution to prove the ingredients of the offence which are as follows:- (i)It must establish that the petitioner was holder of a public office.
(ii)The nature and extent of the pecuniary resources of property which were found in his possession.
(iii)It must be proved as to what were his known sources of income.
(iv)It must prove, quite objectively, that such resources or property found in possession of the petitioner were disproportionate to his known sources of income. The aforesaid ingredients are proved then the offence as defined under section 9(a)(v) is complete, unless the petitioner is able to account for such resources or property. It is also settled proposition of law that mere possession of any pecuniary resources or property is by itself not an offence, but failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence meaning thereby that if a petitioner cannot explain, presumption under section 18(c) of the Ordinance that petitioner is guilty of corruption and corrupt practices is required to be drawn."
8. In our view, the analysis of the income and the existing assets of the petitioner No,1 was investigated by the NAB and tabulated as required in the case of Muhammad Hashim (supra), which prima facie make out a case of accumulation of assets beyond his known source of income with specification of the role on part of the petitioner No,1, connect him to the offences as charged.
9. Furthermore, section 9(b) of the Ordinance lays down that all the offences under the Ordinance are non-bailable, thus bail cannot be allowed under section 497, Cr.P.C. to an accused facing the charges under the Ordinance. However, according to settled principle of law, the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution can exercise the powers available under section 497, Cr.P.C. and to grant bail to an accused for the offence(s) under the Ordinance in appropriate circumstances. The powers as conferred by Article 199 of the Constitution placed discretion with the court, is to be exercised judiciously.
10. Under such circumstances, we are of the opinion that the evidence and the material available on the record, prima fade, connect the petitioner No,1 Muhammad Farooq Shah with the acts alleged, thus, no justification to allow the concession. Without discussing merits of the case further, as any observation at this stage would certainly affect the trial, we are not convinced with the grounds taken by the learned counsel for the petitioner for the grant of bail. Thus, to his extent the petition is dismissed.
11. As far the case of petitioner No,2 (Salman Shah) is concerned, as per record the petitioner No,1 AETO has accumulated numerous assets which he could not account for through his known source of income. Moreover, he (petitioner No,1) malafidely and fraudulently held some of the properties in the name of his sons (petitioner No, 2) and Noman Shah as benamidars. Thus, it is established that prima facie petitioner No, 2 is not involved directly in all the transactions and it is settled law that vicarious liability of an accused is to be determined by the trial Court, after recording of evidence.
Prima facie, the case of petitioner No,2 (Salman Shah) requires further inquiry in terms of subsection (2) of section 497, Cr.P.C. As mentioned above, to the extent of petitioner No,2 (Salman Shah) case falls within the purview of further inquiry, therefore, to his extent petition is accepted and he is admitted to bail in Reference No,2 of 2017, subject to furnishing bail bonds in the sum of rupees two million with PR of the like amount to the satisfaction of the trial Court or the Additional Registrar of this Court.