Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner seeks post arrest bail. She was served with following grounds of arrest:- a. That the accused is involved in the acts of corruption and corrupt practices as defined under Section 9(a) of NAO, 1999 and schedule thereto and AML Act 2010 as she aided and abetted co- accused persons namely Mian Muhammad Mawaz Sharif and others in acquisition and laundering the funds which were disproportionate to the known sources of income of accused Mian Muhammad Nawaz Sharif. The accused Maryam Safdar is also a beneficiary of assets disproportionate to known sources of income of the accused persons. b. That the accused Mian Muhammad Nawaz Sharif remained Finance Minister Punjab, CM Punjab and Prime Minister of Pakistan. Accused Maryam Safdar being daughter of accused Mian Muhammad Nawaz Sharif and being Director/Chief Executive Officer/shareholder of Sugar Mill namely M/s Chaudhry Sugar Mills Ltd. and M/s Shamim Sugar Mills Ltd. at various times, actively aided, abetted and facilitated in acquisition of two Sugar Mills namely M/s Chaudhry Sugar Mills Ltd. and M/s Shamim Sugar Mills Ltd. from the years 1992 to 2016 with the funds which are disproportionate to their known sources of income. That the accused Mian Muhammad Nawaz Sharif, Maryam Safdar and others accused persons/shareholders of said Sugar Mills could not account for the investments of over Rs. 2,000 million in said companies. c. That the accused Maryam Safdar aided Mian Muhammad Nawaz Sharif in acquisition of 11.527 Million shares of M/S CSML worth Rs.400 Million (approx.) in her name which they cannot account for. That the said shares were fraudulently shown to be transferred from foreign nationals namely Saeed Saif Bin Jabar Al-Suweidi, Mr. Sheikh Zaka Ud Din and Hani Ahmed Jamjoom. d. That accused Maryam Safdar aided and abetted accused Mian Muhammad Nawaz Sharif, Yousaf Abbas and others, by layering through false and fictitious transfer of 11 Million shares of CSML in the name of foreigner namely Mr. Nasser Abdullah Hussain Lootah, in order to launder a foreign remittances of US $ 4.8 Million (approx.) by falsely representing it as consideration of 11 Million ordinary shares shown to be transferred to Mr. Nasser Lootah. That the said Mr. Nasser Abdullah Lootah was shown as shareholder in the M/s. CSML fictitiously as he had never acquired any shares in the CSML while the funds of $ 4.8 Million originally belonged to the said accused persons which had earlier been placed in Dubai, the sources of said funds have also not been explained so far. e. Accused Maryam Safdar in connivance with Mian Muhammad Nawaz Sharif and other acquired M/S Shamim Sugar Mills Ltd. for Rs.1,200 M (approx.) while the said accused persons had no sufficient/known sources of funds to acquire M/S Shamim Sugar Mills Ltd. f. That the evidence collected so far reveals that the accused committed offences as defined under section 9 (a) of NAO, 1999 and also under section 3 of AML Act. 2010, by way of aiding and abetting in the commission of offences and also by acquiring obtaining illegal pecuniary benefits through corrupt, dishonest and illegal means. g. That despite 2 x(sic) call up notices the accused has neither provided the requisite record nor has offered any plausible defence."
2. Brief facts as presented by the National Accountability Bureau (hereinafter to be called NAB) are that Financial Monitoring Unit (hereinafter to be called as FMU) Govt. of Pakistan vide its letter No. FMU/A&D/499/2018 dated 12.01.2018 forwarded a Suspicious Transaction Report (hereinafter to be called as STR) and Currency Transaction Report hereinafter to be called CTR to the Chairman NAB regarding various suspicious transactions of huge amounts in the account of M/s Chaudhry Sugar Mills Limited (hereinafter to be called as M/S SCML), co-accused Mian Muhammad Nawaz Sharif and the petitioner/Maryam Nawaz and other employees/relatives and the co-accused persons.
The competent authority authorized inquiry No.1(9)/HQ/2023/NAB-L on 14.11.2008 against the petitioner and others on the allegation of commission of offences of corruption and corrupt practices and money laundering as defined under Section 9(a) of National Accountability Ordinance, 1999 (hereinafter to be called as NAO, 1999) read with Anti-Money Laundering Act, 2010 (hereinafter to be called AMLA, 2010) and shedule thereto. According to the NAB, STR/CTR were carried out in respect of 45 following bank accounts of M/S CSML:- Organization Branch Account No. Title of Account Habib Bank Limited Chak No. GB 456667100080303 Shamim Sugar Mills Pvt.
Ltd.
Bank Al-Falah Ltd.
GojraGojra 1002801828 Choudhary Sugar Mills Ltd.
National Bank of PakistanMain Branch Gojra Choudhary Sugar Mills Ltd.
United Bank Gojra 101622 Choudhary Sugar Mills Ltd.
United Bank Gojra 101622 Choudhary Sugar Mills Ltd.
Bank Al-Falah Ltd. Gojra 1600290004 Choudhary Sugar Mills Ltd.
Bank Al-Falah, Ltd. Gulberg Lahore 0028-01037913 Choudhary Sugar Mdls Ltd.
Bank Al-Falah, Ltd. Gulberg Lahore 0028-02923650 Choudhary Sugar Mills Ltd.
Bank Al-Falah, Ltd. Gulberg Lahore 1003565759 Choudhary Sugar Mills Ltd.
United Bank Gojra 40401016229 Choudhary Sugar Mills Ltd.
NIB Bank Old Race Course Road 4173037 CSML Sugar Division National Bank of PakistanModel Branch Gulberg (Hub Branch) 22.6760-2 Choudhary Sugar Mills Ltd..
Allied Bank Ltd. Tehsil Road Gojra, 'TT Singh 10000327420043 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/JB10040003893203 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/JB10040002156103 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Chaudhry Sugar Mills Chak No. 282/JB10040389203 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/JB1004000389203 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/JB10197900419303 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/JB10040002158103 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/JB1004002156103 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/JB10000000000000 Imprest A/C Ch Sugar Mills Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/jb10040000000000 Imprest A/C Ch.Sugar Mills Habib Bank Ltd. Choudhry Sugar Mills Chak No. 282/jb- Imprest A/C Ch Sugar Mills Allied Bank Ltd. Tehsil Road Gojra TT Singh 111500011 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Lahore Corporate Center 12420201055803 Choudhary Sugar Mills Ltd.
Habib Bank Limited. Lahore New Muslim Town 13150012144803 Choudhary Sugar Mills Ltd.
Bank Al-Falah Ltd. Gojra 16002900004 Choudhary Sugar Mills Ltd.
Bank Al-Falah Ltd. Gojra 16002900009 Choudhary Sugar Mills Ltd.
Habib Bank Ltd. Gojra New Railway Road Distt.
T.T.Singh1080020806503 Choudhaly Sugar Mills Ltd MCB Bank Ltd. New Garden Town Lahore 108001010028601 Choudhary Sugar Mills Ltd MCB Bank Ltd. Gojra Main 33403010000013 Choudhary Sugar Mills Ltd Faysal Bank Ltd. Gojra Branch, Gojra 2800070000409 Choudhary Sugar Mills Ltd Bank Al-Falah Ltd. Gulerg, Lahore 00281003565760 Choudhary Sugar Mills Ltd Allied Bank Ltd. Garden Town, Lahore 10000327420037 Choudhary Sugar Mills Ltd Habib Bank Ltd. Lahore New Garden Town, Lahore 10607900267703 Choudhary Sugar Mills Ltd Habib Bank Ltd. Choudhary Sugar Mill Chak No 282/jb100440002156103 Choudhaly Sugar Mills Ltd United Bank Ltd. Liberty Market, Lahore 96201123776 Choudhary Sugar Mills Ltd Bank Al-Falah Ltd Gulberg, Lahore 1003565760 Choudhary Sugar Mills Ltd The Bank of Punjab Gojra 0079BTA010327000Choudhary Sugar Mills Ltd Allied Bank Ltd. Bridge Colony, Lahore 10000327420050 Choudhary Sugar Mills Ltd Habib Bank Ltd. Pir Mahal 1747901254703 Choudhary Sugar Mills Ltd Habib Bank Ltd. Kot Main Bazar Samaba 9057900416003 Choudhary Sugar Mills Ltd.
MCB Bank Ltd. Kot Samaba 868800041006967 Choudhary Sugar Mills Ltd..
Soneri Bank Ltd. Sheikho Mills Sugar 2012906073 Choudhary Sugar Mills Ltd.
Bank Al-Falah Ltd. Gulberg,Lahore 10033553480 Choudhary Sugar Mills Ltd The allegations against petitioner/Maryam Nawaz Sharif is that she was appointed as Director of M/S CSML in 1992 and continued untill 1997 and she also served as Chief Executive Officer (CEO) of M/S CSML for the years 1995-96 by acquiring 864,000 ordinary shares which remained in her name till 2008. However, from 2008 to 2010 she became the major shareholder having over 12 Million Shares (47% ownership), whereas co-accused Mian Muhammad Nawaz Sharif, became the major shareholder in the company over 12 Million Shares (46% ownership) during the period 2014 to 2016 while he was the Prime Minister of Pakistan. The petitioner allegedly in connivance with co-accused Mian Muhammad Nawaz Sharif and Abbas Sharif, her uncle, acquired M/S Shamim Sugar Mills (hereinafter to be called as M/S SSML) in the year 2011 without explaining the origin of funds. The petitioner allegedly in aid and abetment with co-accused through illegal means, without disclosing the sources/origin of the funds obtained funds worth US $ 4.8 million. In addition, aided and abetted in obtaining another amount of Rs.230 million from UAE in the *form of foreign payments for the ultimate benefit of herself and her co-accused persons without disclosing the source. She thus acquired assets worth Rs.2000 million from the years 2008 to 2018 through illegal means and money laundering by concealing the origin and nature, whereas she remained beneficiary of all such ill-gotten assets.
3. The petitioner was arrested on 08.08.2019 consequent to the warrant of arrest issued by the Chairman NAB and according to NAB during the physical remand she failed to explain the sources of funds for investments of Rs.260 million contributing to the sale price of Rs.1200 million shares, and admitted having acquired shares worth Rs.440 million but again could not explain her sources. She was also confronted with the Telegraph Transfers (TT) of US$ 4.8 million on 25.11.2010 received from UAE in the account of co-accused Yousaf Abbas Sharif, which was transferred into the account of M/S CSML when she was the major shareholder, but she could not explain the sources of transactions. Likewise, her both cousins namely, Yousaf Abbas Sharif, and Abdul Aziz Abbas Sharif, received 12 payments of Rs.230 million originated from exchange companies based in UAE during the year 2013 and she being the direct beneficiary of foreign transaction could not justify it.
According to the NAB, said co-accused/said cousins of the petitioner invested Rs.260 million for acquiring M/S SSML in the year 2011 increasing its worth to Rs.1200 million whereas, they only contributed Rs.230 million from their personal sources and the rest of the investment was not explained. According to Form-A dated 31.12.2008 issued by Securities and Exchange Commission of Pakistan (hereinafter to be called as SECP) in respect of M/s CSML Sheikh Zaka Ud Din was holding 2,021,760, Saeed Saif Bin Jabar Al-Suweidi, 9,409,090, and Hani Ahmed Jamjoon, 97,033 shares making them a total shares of 11,527,883. According to the SECP report, these shares were transferred to the petitioner on 21.05.2008 and the average price of share was Rs.38.17 per share and the shares held by the family were not enough to purchase the shares of above foreigners in the company. According to the Federal Board of Revenue (hereinafter to be called as FBR), record, the petitioner had declared the income of Rs.7,732,370/- between 1992 to 2008 whereas that of co- accused Mian Muhammad Nawaz Sharif, between 1985 to 2008 was 15,640,600/- and that of late Kalsoom Nawaz, of the said year was 6,075,454/- and the amount required to purchase 11,527,883 shares was Rs.440,019,294/-, therefore, they had the deficiency of funds of Rs. 41,570,870/-.
4. According to the NAB, during the year 2010 co-accused Yousaf Abbas Sharif, received a telegraphic Transfer (TT) of US $ 4,88,000/-equivalent to PKR 417,472,100/- in his account No. 02809616 maintained at Bank Al-Falah Gulberg Branch, Lahore on 25.11.2010 from Naseer Lootah of UAE as foreign investment in lieu of 11 million original shares of M/S CSML transferred in his name.
However, Naseer Lootah, had denied having made any investment in M/S CSML for purchase of shares and he stated that US $ 4,885,000/ - was invested by Sharif family in 2010 in his real estate business in UAE which was returned to co-accused/Yousaf Abbas Sharif through TT of US $ 4.8 million. This amount of approximately 4.7 million was transferred by Yousaf Abbas Sharif, into the account of M/S CSML in Bank Al-Falah Gulberg Branch, Lahore and as such the petitioner and her father, Mian Muhammad Nawaz Sharif, the major shareholders had become the beneficiary of unexplained proceeds. Yousaf Abbas Sharif was holder of only 3% ownership and in one year he became the owner, of 45% shares as the major shareholder in order to whiten unaccounted funds received from UAE. During the year 2013, Yousaf Abbas Sharif, received 5 payments amounting to Rs. 130 million without declaring the source of income or investment in UAE in his account No.0490162781006118 maintained at MCB Bank Branch New Garden Town, Lahore which he further transferred to M/S CSML account No.0108001010028601 at MCB Bank Branch New Garden Town, Lahore. Likewise, in the year 2013, co-accused Abdul Aziz Abbas Sharif, another cousin of the petitioner, received 7 payments from the exchange companies of UAE amounting to Rs.100 million in his personal account No.516398571005976 maintained at MCB Bank Branch New Garden Town, Lahore without any source of income or investment in UAE from his another account No. 0490162781006118 transferred the amounts in M/s CSML in Account No.01080010110028601 both MCB Bank Branch New Garden Town, Lahore.
5. In nutshell, according to the NAB, the evidence so far collected revealed that petitioner with the co-accused Mian Muhammad Nawaz Sharif, Yousaf Abbas Sharif and Abdul Aziz Abbas Sharif, and others with active aid, abetment and, assistance of each other have accumulated assets disproportionate to their known sources of income in M/s SSM in the year 2011 and in form of huge investments/deposit of unexplained money in the bank account of M/S CSML from year 2008 to 2018, thus the assets acquired through illegal means by concealing the origin and nature of aforesaid assets, and by creating multiple layers of transactions in order to launder unexplained funds, committed the offences as defined under Anti-Money Laundering AML Act, 2010 read with Section 9(a)(xii) of NAO, 1999.
6. To fortify the prosecution case, it has been emphasized in the report and parawise comments submitted by the NAB that the party of petitioner family Pakistan Muslim League (N) was sitting at the helm of affairs of Pakistan yet the inquiry was conducted and investigation made, and according to the information/record collected, revealed/disclosed from a PANAMA based law firm, namely, Mossack Fonseca commonly referred as "PANAMA PAPERS" the petitioner's family was found to have connections with offshore companies. The Hon'ble Supreme Court of Pakistan seized of the matter constituted a high profiled Joint Investigation Team (to be called JIT) to investigate, and after giving exhaustive hearings, the co-accused Mian Muahmmad Nawaz Sharif, was declared as not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 and disqualified to be a member of Parliament.
The apex Court also directed the NAB to prepare and file Reference within six (6) weeks against the petitioner, her husband, father, brothers, amongst other relatives in respect of the Avenfield properties. Resultantly, ACR No. 19 of 2017 was filed and the co-accused Mian Muhammad Nawaz Sharif, was convicted and sentenced which shows that he was the real owner of the assets.
According to the NAB, the JIT was constituted with the majority of 3 to 2 by the apex Court and the petitioner joined the proceedings and while admitting the ownership of Avenfield properties introduced certain claims regarding its acquisition. The JIT found that petitioner was the real beneficiary owner of BVI companies namely Nielson Enterprises Limited and Nescoll Limited and the documents presented were found forged/tampered. A Reference No.19 of 2017 was also filed against Mian Muhammad Nawaz Sharif and others regarding, Azizia Steel Company in which he was convicted and sentenced and Reference No.18 of 2017 was also filed against Mian Muhammad Nawaz Sharif and others regarding 16 companies and Reference No.20 of 2017 was also filed regarding Avenfield properties.
7. Mr. Azam Nazeer Tarar and Mr. Muhammad Amjad Pervaiz, the learned counsel for the petitioner submit that the allegations levelled against the petitioner Maryam Nawaz Sharif is that of abetment and aiding the commission of offence under section 9(a) of NAO, 1999 and that she, is not the principal accused. Add that section 9(a)(xii) of NAO, 1999 was added on 23.11.2002 vide Ordinance No.CXXXIII of 2002 and in view of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and the view given in case titled "Brig. (R.) Karrar Ali Agha v. National Accountability Court No.11, Lahore and another" reported as PLJ 2010 Lahore 78 (DB) and case titled "The State through Chairman NAB and others v. Muhammad Asif Saigol and others" reported as PLD 2016 SC 620 (para 12) it cannot be given a retrospective effect. Add that there is no deeming clause in the amending Ordinance, therefore, such amendment is prospective in nature and not retrospective in effect, thus, cannot be applied to the petitioner. Further added that the NAO, 1999 was promulgated on 16.11.1999 and under section 2 whereof it had effect from January, 1985, therefore, it could not be applied on the petitioner on the given allegations. They further contended that the petitioner was born on 28.10.1973 and was minor at the time when M/s CSML was incorporated on 05.04.1981. Argued that she just remained as a shareholder since it was the part of her family enterprise as reflected from Form A issued by SECP in 1983. She remained a Director from 1992 to 1997 and Chief Executive in the year 1995-96 at the time when her grandfather Mian Muhammad Sharif (died on 19.10.2004) had been controlling and supervising the M/s CSML and after his death his other son, namely, Mian Abbas Sharif managed it as CEO until his death on 11.01.2013 whereafter his son Mian Yousaf Abbas Sharif her cousin has been running the M/S CSML as CEO. Also argued that in violation of Article 13 of the Constitution as well as section 403 Cr.P.C., the petitioner is facing repeating prosecution as the JIT has already probed the matter and Reference has been filed by the orders of Hon'ble Supreme Court of Pakistan in Avenfield, therefore, present investigation/inquiry is unjustified and legally not sustainable. Further argued that the charge was framed in Al Azizia Reference in respect of the properties including M/S CSML, therefore, further inquiry is uncalled for. Add that the petitioner is not the beneficiary of M/S CSML and that being a mere beneficiary will not attract any offence under NAO, 1999 in view of the law laid down by the apex Court in case titled "Abdul Hameed Dollar v. Federal Government through Secretary Ministry of Interior and 2 others" reported as PLD 2016 SC 454. Added that the STR/CTR was prepared on the basis of surmises and conjectures and the correct figure of the alleged amount was not even mentioned. Add that the case of the petitioner is at the most of vicarious liability which could only be determined by the learned trial court after recording evidence at trial, therefore, she is entitled to post arrest bail. Lastly, submit that petitioner is a woman who is otherwise entitled to the bail keeping in view the various case laws. They relied upon case titled "Muhammad Ikram and others v.
The State" reported as PLD 1965 (W.P.) Lahore 461, case titled "Mst. Ramzan Bibi and another v.
Hakim Muzaffar Hussain" reported as PLD 1967 Lahore 186, case titled "Ramesh M. Audeshi v. The State" reported as 2002 PCr.LJ 1712, case titled "Ch. Tanveer Khan v. Chairman, National Accountability Bureau and others" reported as PLD 2002 SC 572, case titled "Badar Alam Bachani v.
The State through Chairman NAB an another" reported as 2010 PCr.LJ 1988, case titled "Noorshad v. Chairman National Accountability Bureau and 5 others" reported as 2017 PCr.LJ 1258. Also relies upon case titled "Chairman, National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad v. Mian Muhammad Nawaz Sharif and 2 others" reported as PLD 2019 SC 445, case titled "Muhammad Zoonoon Khan v. Federation of Pakistan through Secretary Ministry of Law, Justice, Human Rights and Parliaments Affairs, Islamabad" reported as PLD 2014 Federal Shariat Court 63, case titled "Miss Shahla Raza v. The State" reported as 1991 MLD 1814, case titled "Mst. Afsar Bibi v The State" reported as 2005 PCr.LJ 164 and case titled "Khan Haroon Resikh v. The State and 2 others" reported as PLD 2003 Lahore 517. Also places reliance upon case titled "Messrs Hudaibya Paper Mills Ltd. and others v. Federation of Pakistan and others" reported as PLD 2016 Lahore 667 and case titled "National Accountability Bureau (NAB) through Chairman v. Messrs Hudaibya Paper Mills Limited Lahore and others" reported as PLD 2018 SC 296.
Also relies upon case titled "Asif Ali Zardari v. The State and another" reported as 1992 PCr.LJ 58, case titled "Tariq Sultan and another v. National Accountability Bureau through Chairman and 2 others" reported as 2012 PCr.LJ 1983, case titled "Dr. Asghar Ali v. The State and others" reported as 2016 PCr.LJ 193.
8. Mr. Jahanzaib Bharwana, learned Additional Special Prosecutor for NAB submits that extra ordinary jurisdiction regarding grant of bail is to be exercised in extra ordinary circumstances and not in run of the mill case or as a matter of course, and only when the custody of the accused was shockingly, unconscionable or inordinately delayed and not otherwise, and that primary consideration for the grant of bail is undue hardship and, more often than not, prima facie merits of the case are also to be looked into. Also submits that High Courts have already been burdened with the bail application under Article 199 of the Constitution, therefore, such powers are to be exercised in circumspection and caution as extra ordinary jurisdiction is invoked and exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law and just to prevent the miscarriage of justice and abuse of NAO, 1999 and not a substitute of power under Sections 426, 491, 497, 498 and 561-A, Cr.P.C. to be exercised liberally and indiscriminately as ordinary criminal jurisdiction. Adds that prima facie sufficient material is available on record to connect the petitioner with the commission of offence and that the purpose of NAO, 1999 is to curb is not commonplace and the offenders who indulged in it are not of the normal type as these are the crimes not against the individual but against the society, therefore, response has to be dynamic and punitive rather than benign or curative and it was also argued that it may be true that an individual subjected to the rigours of this law may sometime suffer disproportionately but the greater good of the society emerging from stringent applications of this law may make this approach worth its while. According to the learned Prosecutor as stated in the parawise comments, there is a likelihood of her fleeing from the country or going underground or becoming unavailable like co-accused Yousaf Abbas Sharif, who tried to flee/abscond from the country. Adds that record does not show/substantiate the false, evasive, vague and unfounded allegations of malice or mala fide on the part of the NAB, therefore, petition does not qualify to be allowed since factual controversies have been raised. Also submits that Hon'ble Supreme Court of Pakistan had framed 13 questions to be probed by the JIT and vide order dated 28.07.2018, upon the receipt of the said JIT report, NAB was directed to file Reference against Mian Muhammad Nawaz Sharif, petitioner, Hussain Nawaz, Hassan Nawaz and Capt. (R) Muhammad Safdar, relating to Avenfield properties (Flats Nos. 16, 16-A, 17 and 17-A, Avenfield House, Park Lane, London, UK.
9. Arguments heard. File perused.
10. After hearing the learned counsel for the petitioner and the learned Prosecutors for NAB assisted by Investigating Officer/case officer and perusing the record placed before this Court, we have straightway noticed that petitioner being a woman had invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the grant of her post arrest bail made on the allegation that she aided and abetted as CEO/Director/shareholder of M/s CSML and SSML to facilitate in acquiring of assets disproportionate to the known sources of income of the petitioner, her father namely, Mian Muhammad Namaz Sharif, and others since their investment of Rs.2000 Million was not accounted for. She has also been alleged to have aided her father to acquire 11.572 Million shares of M/S CSML worth Rs.400 Million statedly transferred by three foreign nationals namely, Saeed Saif Bin Jabar Al- Suweidi, Sh.Zaka-ud-Din and Hani Ahmed Jamjoom. Another UAE national, namely, Nasser Abdullah Hussain Lootah, made TT of US$ 4.8 Million as consideration for 11 Million ordinary shares was found false only in view of his statement recorded on 03.08.2019. She has also been alleged to have connived with her father to acquire assets of SSML of worth Rs.1200 Million without disclosing the sufficient funds and thus she aided and abetted her co-accused person to gain and extend pecuniary benefits through corruption and corrupt practices.
11. According to Section 9(a)(xii) of NAO, 1999 if someone aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office, accused of an offence defined in Section 9(a)
(i) to (xi) of NAO, 1999, can be punished under Section 10 of NAO, 1999 for a term which may extend to 14 years. This Section was not originally in the Ordinance but was added through Ordinance No. CXXXIII of 2002 dated 23.11.2002 obviously without retrospective effect. However, the allegations were levelled for the period of the year 2008 onward, therefor, this section prima facie can be attracted in the present case with Reference to its existence at the time of alleged crime.
12. Since the case was argued before us with a well-known, background, therefore, it would be expedient to lay down some basic premise for the purposes of our discussion essential for the order in present case. In the judgment reported as PLD 2017 Supreme Court 692, a final order was announced under which NAB Rawalpindi/ Islamabad was directed to file Reference within a period of 6 weeks on the basis of material collected and referred to by the JIT in its report and such other material as may be available with FIA and NAB having any nexus with the assets mentioned or which may subsequently become available pursuant to the Mutual Legal Assistance Request sent by JIT to different jurisdictions. In clause "a" of the said order Reference was to be filed against the petitioner and others in respect of Avenfield properties in UK and under clause "c" on the basis of statements of Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, made against the petitioner leading to the acquisition of assets beyond the known sources of income, and under clause "f" any supplementary Reference could also be filed. Notably, M/S CSML was not mentioned anywhere. Relevant extract is reproduced as under:- "FINAL ORDER OF THE COURT.
The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-
(a) Reference against Mian Muhammad Nawaz Sharif, (respondent No.1) Maryam Nawaz Sharif (Maryam Safdar), (Respondent No.6), Hussain Nowaz Sharif (Respondent No.7), Hassan Nawaz Sharif (Respondent No.8) and Capt. (Retd). Muhammad Safdar (Respondent No.9) relating to the Avenfield properties (Flats Nos. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments.
(b)
(c)
(d)
(e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents Nos. ], 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income.'
13. On 12.01.2018 STR/CTR were received in respect of politically exposed persons and linked individuals/entities on the basis of details in Volumes 1 and 2 of the report submitted before the Supreme Court and according to clause 5 thereof, in respect of M/S CSML, the petitioner was mentioned as one of the directors amongst many others; a status which is not denied by the petitioner. In the analysis of STR/CTR, a reference was given to the report submitted by HBL in respect of M/S CSML dated 22.09.2017 in respect of account maintained with their Corporate Center Branch since 24.10.1998 and under clause "5(a)" of CONCLUSION AND RECOMMENDATIONS a mention was made to the judgment of PANAMA Papers against Mian Muhammad Nawaz Sharif by the Supreme Court of Pakistan and it was stated that M/S CSML had maintained several accounts in the business name of HBL, some of them have been closed and some remained dormant since it was mostly for business transaction. One transaction in the MCB Bank account of Mian Muhammad Nawaz Sharif reflects transfer of Rs.18.019 Million to M/S CSML and Rs.2.335 Million transferred from SCB account to Mian Muhammad Nawaz Sharif and then to M/S CSML. But the name of the petitioner does not figure out anywhere. Relevant excerpt is reproduced as under:- "5. The other STRs/CTRs received pertained to Chaudhary Sugar Mills Ltd, Mian Muhammad Shahbaz Sharif and some possibly linked individuals. The STRs were raised in the backdrop of the judgment on Panama Papers case against Mian Muhammad Nawaz Sharif by the Supreme Court of Pakistan. a. Chaudhary Sugar Mills had been maintaining several accounts in the business name with HBL, some of which have been closed or become inactive over a period of time. However, the suspicion was not raised on any particular transaction in the accounts of Chaudhary Sugar Mills. The transactions in the accounts mostly appear to be business transactions. One of the transactions in the MCB account of M ian Nawaz Sharif reflects transfer of Rs.18.019 M to M/s Chaudhary Sugar Mills Ltd Likewise, funds amounting to Rs.2,335 M were transferred from SCB account of Mian Nawaz Sharif to M/s Chaudhary Sugar Mills Ltd."
14. These two important foundations do not prima facie, expose the name of petitioner directly to suggest that she actively participated, connived, abetted or aided to acquire assets disproportionate to the known sources of income since no connection of the petitioner was established with said foreign nationals in order to persuade them to invest in M/S CSML to attract the provisions of NAO, 1999 and AMLA 2010.
15. It has also not been denied by either party that during the proceedings in the PANAMA case, M/S CSML never remained as a subject of discussion, therefore, in our considered view NAB can possibly probe and investigate into the matter and the question of double jeopardy would not prima facie arise in favour of the petitioner. Article 13 of the Constitution and section 403 Cr.P.C. and the judgment cited at bar do not support the petitioner, therefore, the judgments cited at bar titled "Muhammad Ikram and others v. The State" reported as PLD 1965 (W.P.) Lahore 461, case titled "Mst.
Ramzan Bibi and another v. Hakim Muzaffar Hussain" reported as PLD 1967 Lahore 186, case titled "Ramesh M. Audeshi v. The State" reported as 2002 PCr.LJ 1712, case titled "Ch. Tanveer Khan v.
Chairman, National Accountability Bureau and others" reported as PLD 2002 SC 572, case titled "Bader Alam Bachani v. The State through Chairman NAB and another" reported as 2010 PCr.LJ 1988, case titled "Brig. (R) Karrar Ali Agha v. National Accountability Court No.11, Lahore and another" reported as PLJ 2010 Lahore 78(DB), case titled "Noorshad v. Chairman National Accountability Bureau and 5 others" reported as 2017 PCr.LJ 1258 will not be attracted to the present case.
16. Likewise, the other argument raised from the petitioner's side is that at the time of incorporation of M/S CSML in the year 1981, the petitioner was a minor, therefore, she cannot be held responsible for any such transaction but this argument cannot be appreciated at this stage for the simple reason that allegations against her pertain to year 2008 and onward when she was not only major but also shareholder with increased shareholding in M/S CSML.
17. However, as far as the ownership of share of Nasser Abdullah Hussain Lootah, a UAE national is concerned, the official record pertaining to SECP does not show that he was not the shareholder, therefore, ipso facto his denial of this fact mentioned in Form A dated 10.02.2012 needs further probe since correction of this record require some procedure to be adopted by him, which we have not noticed in the present case. Besides, presumption of truth is attached to the Form A as held in case titled "Waseem Yaqoob v. Chief Commissioner, Income Tax, Lahore and 2 others" reported as 2012 PTD 1883. The relevant extract is reproduced as under:- In the instant case it has done so and accordingly, the Company filed the Form A for the year 1997.
Furthermore, section 155 of the C O 1984 provides that the registers referred to in section 156 shall be prima facie evidence of the matters contained therein. Section 156(4) provides that all the particulars to be submitted under section 156(1) and (2) shall have been entered in the register maintained with the company. Reading both these sections together means that the Form A is prima facie evidence of the matters contained therein and if the respondents refute or deny the information then, it should be through cogent evidence supporting their stance.'
Importantly, he has admitted before the NAB that he sent the money out of the investment made by the petitioner's family in real estate on their instructions back to them though he does not own any share in M/S CSML. In our considered view, the petitioner has prima facie shown her money trail linked to the said foreigners, leaving the prosecution to further probe into the matter of the allegation against the petitioner. We were informed that Mr. Lootah had made a statement on 03.08.2019, photocopy of which was neither certified nor notarized by foreign office. However, a statement was recorded under Section 164, Cr.P.C. before the court of Waseem Ahmed Khan, Additional District Magistrate, Islamabad on 05.08.2019, repeating the said statement, in the absence of the petitioner and her learned counsel without permitting the right to cross-examine, therefore, its effect may be considered by the trial court after recording of evidence. Besides, the fact of TT US$ 4.885 Million sent to Yousaf Abbas Sharif's account in Pakistan as a profit/investment from real estate made by the family of the petitioner would shift the onus back to the prosecution to prove it as a dubious transaction. Importantly, statements of other three foreigners namely, Saeed Saif Bin Jabar Al Suweidi, Sh. Zaka-ud-Din and Hani Ahmed Jamjoom, have not so far been recorded by the prosecution who were also mentioned as shareholder vide Form A dated 21.05.2008, therefore, calling for further probe into the guilt of the petitioner. In case titled "Abdul Aziz Memon and others v. The State and others" reported as PLD 2013 SC 594, it was held that even the foreign officer making transaction with the holder of public office may become accused and falling in any category of "accused persons" but in the present case such foreigners were not cited as accused persons.
18. Besides, in "Abdul Hameed Dogar v. Federal Government through Secretary, Ministry of Interior and 2 others" reported as PLD 2016 SC 454, it has been held that there is a difference between an aider/abettor and a beneficiary as the former abets or aids with another who is a privy to the acts itself but a beneficiary takes the benefit or advantage of the said act after the event. In the present case, as already discussed above, it has not come on record that the petitioner had in any manner aided, abetted to persuade the foreign nationals to send their money into M/s CSML account. The relevant extract of the judgment at page 461 is reproduced as under:- "The difference between an aider/ abettor and a beneficiary is quite obvious. A person aiding or abetting another in an act is privy to the act itself but a beneficiary takes benefit or advantage of the act after the event and he may not necessarily be a party to the act itself:"
19. Here a reference can also be given to case titled "Asif Ali Zardari v. The State and another" reported as 1992 PCr.LJ 58, passed by the Division Bench of Hon'ble Sindh High Court in which the offence of abetment was explained with reference to its ingredients which shows the elements of mens rea as sine qua non for the constitution of the said offence. The relevant extract from page 70 is reproduced as under:-- "The offence of abetment has been defined by section 107 of the Pakistan Penal Code. The definition shows in the first instance, that a person abets the doing of a thing who instigates any person to do that thing. Secondly, a person is also said to abet the doing of a thing who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. Thirdly, a person is said to abet the doing of a thing if he intentionally aids, by any act or illegal omission, the doing of that thing. In Ballentine's Law Dictionary the word instigate has been defined to mean 'to stimulate or goad to an action, specially a bad act, to incite, to foment, specially the commission of a crime'. The same ward has also been defined by Black's Law Dictionary as 'to stimulate or goad to an action, specially a bad action'. 'Instigation' has been defined by the same Dictionary to mean 'incitation, urging, solicitation. The act by which one incites, another to do something, as to commit some crime or to commence a suit'. "
"We would like to point out that, as is evident from the definition of abetment contained in section 107, Cr.P.C. mens rea would be an essential ingredient of the said offence. Maxwell on the Interpretation of Statutes (12th Edn.) at page 123 observes: 'where an offence is created by Statute, however comprehensive and unqualified the language of the Statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition 'of the crime, unless a contrary intention is expressed or implied'. The definition of abetment in section 107, P.P.C. relates to instigation, conspiracy and intentional aiding. An element of criminality must, therefore; be clearly spelt out before a person can be indicted for abetment."
20. On the question of assets beyond means, in case titled "Ghani- ur-Rehman v. National Accountability Bureau and others" reported as PLD 2011 SC 1144, it has been held that mere possession of any pecuniary resources of property is not an offence but its failure to satisfactorily account for such possession of pecuniary resources of property that makes the possession objectionable and constitute the relevant offence. This view has already been adopted by this court in case titled "Brig. (R) Imtiaz Ahmed v. The State" reported as PLD 2017 Lahore 23 for assets beyond means which has been upheld by the Hon'ble Supreme Court of Pakistan. The observations of their lordships read as under:- "To cater the situation we have been guided again by the Supreme Court of Pakistan in Ghani-ur- Rehman v. National Accountability Bureau and others (PLD 2011 Supreme Court 1144), wherein it was held that the prosecution must bring on record the misuse of authority of the public servant to show that the assets built by him is disproportionate to the known source of income. Relevant extract of said judgment is reproduced as under: - "The law now stands settled that in order to prove commission of an offence under section 9(a)
(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily to account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes the relevant offence. In the case in hand the appellant's sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and, therefore, it was not possible for the learned trial court to conclude or to hold that the appellant or his dependants or so-called benamidars owned or possessed assets or pecuniary resources disproportionate to the appellant's income. It is unfortunate that the investigating officer of this case as well as those responsible for prosecution of this case before the learned trial court had, probably on account of their sheer incompetence, utterly failed to do the needed in this regard and it is regrettable that even the learned trial court.as well as the learned appellate court had completely failed to advert to this critical aspect of the present case."
21. As far as section 3 of Anti-Money Laundering Act, 2010 is concerned, it will be expedient to reproduce the same:- "3. Offence of money laundering.--A person; shall be guilty of offence of money laundering, if the person:-- (a) acquires, converts, possesses, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime;
(b) conceals or disguises the true nature, origin, location, disposition, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime;
(c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or (d) participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), (b) and (c). Explanation-I.-- The knowledge, intent or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984). Explanation IL- For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate offence shall not be required."
Perusal of said Section reveals that there has to be some nexus with the crime proceeds and, therefore, it pre-supposes that some crime had been committed. According to the learned Prosecutor, the offence under NAO, 1999 is an "intended" crime, therefore, to attract the ingredients of this Section, further investigation will be required. In case titled "Syed Mushahid Shah and others v. Federal Investment Agency and others" reported as 2017 SCMR 1218, it has been held that in case of conflict between two special laws containing overriding clauses, the later-in-time would prevail over the statute prior in time but this is not automatic instead a host of other factors will be attracted. Obviously, AMLA 2010 is later in time which attracts lesser punishment, therefore, it would be interesting discussion before the trial court on this aspect.
22. The question of making layers and becoming beneficial also requires further probe since it is not the prosecution case that investments in the real estate in UAE was out of some crime proceeds in the form of ill-gotten money. It is also not the prosecution case that said money coming from UAE was black money having origin from some crime proceeds of internationally recognized crimes like terrorism, etc. Undoubtedly, attracting foreign investment has always been a perennial demand of every government and all governments would dream of it but great hurdles were always faced by them to make it a reality.
23. We have been shown the bank statement of Account No.0149056661004053 in the name of petitioner in which transaction of Rs.41,06,6200 and Rs.28,933800 were made in the month of November, 2011 and a sum about seven crores rupees were withdrawn in the same month by the petitioner but on the face of it, it does not help out the prosecution for the simple reason that it is not the prosecution case that M/S CSML was bankrupt or was in loss, therefore, no money could be withdrawn by shareholder/CEO. However, this aspect of the matter can be probed by the NAB. It was held by this court in case titled "Dr. Asghar Ali v. The State and another" reported as 2016 PCr.LJ.
193 that the benefit of any such transaction should be clear and visibly established and should not be shrouded in mystery. The withdrawal of amount of Rs.7 crore as alleged by the NAB, cannot be termed as illegal gotten money or an asset beyond known source of income since prima facie the source of money was shown in the official record of the M/s CSML with Reference to foreign investment.
24. The judgments cited by the prosecution as case titled "Tallat lshaq v. National Accountability Bureau through Chairman, and others" reported as PLD 2019 SC 112, does not totally oust the jurisdiction of this court under Article 199 of the Constitution for the simple reason that the constitutional jurisdiction which is always attracted where there is absence of alternate and efficacious remedy. However, besides considering the hardship of the case, merits of the case will always be taken into consideration at the time of deciding of bail application. It is true that corruption and corrupt practices are rampant in our society, therefore, needed to be curbed with iron hands but at the same time, this court cannot keep its eyes off the legal proposition that bail cannot be withheld as a punishment since this court would otherwise transgress into the power of the trial court to return its finding upon guilt on the basis of evidence. In case titled "Abdul Aziz Khan Niazi v. The State through Chairman NAB, Islamabad" reported as PLD 2003 SC 668, it was held that the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of (woman) bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run, The relevant extract is reproduced as under:- "6. The grant of bail in Constitutional jurisdiction by High Court is entirely discretionary but there can be no deviation to the rule that discretion should not be exercised in violation of recognized principles of justice and if it is exercised only on the basis of presumption, inference, suspicion or bare allegation, it would defeat the very purpose of discretion. The High Court, in exercise of its discretion, should not proceed in departure to the recognized principles and in case such an error is committed, the Supreme Court is always empowered to interfere in the matter in the interest of complete justice. The law does not permit to detain the people in jail only on the basis of presumption and suspicion of commission of criminal acts, therefore, it is the duty of Court to administer the justice, prevent the abuse of law and protect the liberty of people. The High Court while considering the question of bail in its Constitutional jurisdiction can examine the nature of allegation on the basis of tentative assessment of the evidence in the hands of prosecution to ascertain prima facie, the question of guilt or innocence of an accused for the purpose of grant or refusal of bail and without expressing on the merits of the case, lest it should prejudice the accused or prosecution, should exercise discretionary jurisdiction in the interest of administration of justice.
This is settled law that bail cannot be claimed as a matter of right but there can also be no departure to the rule that bail in non-bailable offences should not be withheld as punishment, therefore, the High Court while dealing with the question of bail in its Constitutional jurisdiction must consider it carefully and weighed in the scale of justice. The reasonableness of the grounds for withholding the bail to person accused of a non-bailable offence must be shown through the material and merely a suspicion may be sufficiently strong, is not enough to refuse the bail. There can be no cavil to the position that the High Court may or may not interfere in a matter in its discretionary jurisdiction but refusal to interfere must not offend the spirit of law and cause of justice as the object of exercise of discretionary jurisdiction is always to foster the justice, preserve the rights and protect the liberties. This Court in Manzoor and 4 other v. State (PLD 1972 SC 81) held as under:-- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
This judgment, with utmost respects, of the Honble Supreme Court, was neither discussed nor referred in Tallat Ishaq's case.
25. Besides, this court in W.P.No.42682-2019 titled "Muhammad Sabtain Khan v. National Accountability Bureau and others" and W.P.No.581-2019 titled "Hafiz Mian Muhammad Nauman v.
Director General NAB and others", has decided that in appropriate cases the constitutional jurisdiction in respect of the grant of bail can be exercised and, therefore, fully attracted in the present case.
26. The petitioner had also filed an application for the interim bail so as to see her ailing father already hospitalized in which we have been informed by the State that she is accompanying her father in the hospital to look after his health, therefore, prayer to the extent of grant of interim bail has not been pressed by the learned counsel for the petitioner.
27. The petitioner also seeks bail on the ground that she is a woman and refers to the judgment given in case titled "Miss Shahla Raza v. The State" reported as 1991 MLD 1814 and case titled "Mst.
Afsar Bibi v. The State" reported as 2005 PCr.LJ 164, in which it was held that grant of bail to a woman is also discretionary but the courts have always been leaned towards such exercise, therefore, grant of bail to a woman should be a rule and discretion must be exercised in her favour in the absence of compelling circumstances disentitling her to the grant of bail. In the present case the exceptional circumstances do not appear to attract in favour of the prosecution, since she has neither absconded nor obstructed the process of law. A reference may also be given to case titled "Zohra Khanum v. The State" reported as 2009 SCMR 751 in which the Honble Supreme Court of Pakistan has held that showing the common intention/abetment by a woman even in a murder case required further probe, therefore, the bail was granted. Besides, in the judgment titled "Chairman, National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad v. Mian Muhammad Nawaz Sharif and 2 others" reported as PLD 2019 SC 445 it was already observed that the petitioner being a woman was rightly granted to concession of bail.
Relevant extract of para 6 is reproduced as under:- "One of the said respondents is already in jail after having been convicted and sentenced in connection with another criminal case, another of the said respondents is a woman and the law envisages concession for her in the matter of bail and the sentence of imprisonment passed by the trial court against yet another of the said respondents was quite short."
28. Since the prosecution has shown the bank statement of the account No.0149056661004053 of the petitioner in which on 28.11.2011 vide Cheque No.39438534, Rs.7 crores were withdrawn and the prosecution has apprehension of fleeing away of the petitioner, therefore, to satisfy our judicial conscience we would pass a conditional order.
29. Keeping in view the above discussion and the case law cited by the respective parties, while exercising the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 we allow this petition and admit the petitioner to post arrest bail subject to furnishing of surety bonds in the sum of Rs.10 Millions with two sureties each in the like amount to the satisfaction of the learned trial court and to establish her bona fide would also deposit amount of Rs.7 crore with the Deputy Registrar (Judicial) of this court besides submitting her passport(s) with him.