The petitioner Mian Muhammad Shahbaz Sharif, through the instant constitutional petition seeks post arrest bail in Investigation authorized vide letter No. 1(61)HQ / 958 / NAB-L dated 07.12.2018, in Ramzan Sugar Mills Scam.
2. According to the prosecution's case, a complaint was received by the NAB/respondent wherein it was alleged that embezzlement has been committed in the public grant issued by the Government of Punjab, amounting to Rs.360-million, in 2015 for drainage scheme of the local bodies in District Chiniot. The said public grant had been misused and utilized for the construction of 9/10-KM's long waste water course for Ramzan Sugar Mills Limited, Chiniot, fraudulently showing it a drainage scheme of the local "Abadies". It was also alleged in the above-mentioned complaint that Ramzan Sugar Mills Limited, Chiniot belongs to the Chief, Minister Punjab (Mian Muhammad Shahbaz Sharif/petitioner) and his son's and due to the said reason, the concerned Government departments completed the project under the disguise of drainage scheme for the local "Abadies" whereas the actual object behind the said scheme was to save the expenses of Ramzan Sugar Mills Limited, Chiniot. On receipt of the above-mentioned complaint, an inquiry was authorized by the competent authority vide letter No.1(b9)HQ/1969- NAB-L on 04.07.2018, on the allegations of corruption and corrupt practices. The said inquiry was later on converted into investigation vide letter No.DY.305/ 2017/ L-III/ MW-1/ NABHQ dated 28.11.2018 and subsequently the investigation was authorized against Mian Muhammad Shahbaz Sharif (petitioner), Muhammad Hamza Shahbaz Sharif, co-accused, C.E.O. of Ramzan Sugar Mills Limited, Chiniot, as well as, against the Government functionaries and others vide letter No.1(61) HQ/958/NAB-L on 07.12.2018.
During the investigation, it revealed that the petitioner being the then Chief Minister of Punjab, misused his authority in order to provide illegal pecuniary advantage to Ramzan Sugar Mills Limited, Chiniot, and his son Muhammad Hamza Shahbaz Sharif (co-accused) being the C.E.O/Director of the said mills at that time. The petitioner vide directive dated 21.05.2014, approved the execution of a scheme for construction of a sullage carrier from Village Daruta and other allied "Abadies" to the seepage drain Bhawana and this was malafidely done in order to provide effluent drainage to Ramzan Sugar Mills Limited, which should have been arranged at the cost of the mills itself. As per investigation, the abovementioned act of the petitioner caused a loss of Rs.213-million to the national exchequer. It is further concluded during the investigation that it was the responsibility of the management of Ramzan Sugar Mills to make arrangements for disposal of industrial effluent of the mills, however, no such arrangement was made and eventually, the sullage carrier was constructed at the expense of the public exchequer for the personal benefit of the son of the petitioner. It was further found during the investigation that the petitioner managed an application through the then MPA PP-74, namely, Moulana Muhammad Rehmat Ullah in collusion with his son Muhammad Hamza Shahbaz Sharif, co- accused wherein the route/alignment of the sullage carrier was designed in such a way that Ramzan Sugar Mills Limited, Chiniot was included in it, without mentioning the same in the above application. The petitioner issued a directive dated 21.05.2014 on a self-managed request of Moulana Muhammad Rehmat Ullah, the then MPA PP- 74, I whereby he approved the execution of the scheme for construction of the above referred sullage carrier.
Funds were arranged for the above-mentioned project through re-appropriation of funds and supplementary grants for speedy execution of the scheme. As per NAB/respondent, Muhammad Hamza Shahbaz Sharif (co- accused) was the Chief Executive of Ramzan Sugar Mills Limited, Chiniot at the time of approval and execution of the scheme for the construction of the above said sullage carrier, therefore, he was the beneficiary of the directive issued by the petitioner.
The petitioner was arrested on 10.11.2018 by the NAB/ respondent in this case on account of the above- mentioned allegations, he is now on judicial remand, hence, the present constitutional petition before this Court for grarit of post arrest bail to the petitioner.
3. It is contended by learned counsel for the petitioner that the petitioner is absolutely innocent and he has mlafidely, been arrested in this case due to political victimization; that Ramzan Sugar Mills Limited, Chiniot was established in the year 1990 and since then there was no complaint against the said mills from any corner regarding its industrial effluent; that the prosecution's own witness, namely, Ameer Khan who is a Circle Patwari of the area and whose statement has been relied upon by the NAB/ respondent himself, has categorically stated that a pond comprising 86-Kanals and 02-marlas in the land of Ramzan Sugar Mills Limited, Chiniot is present for dumping the industrial effluent of the milks; that even in the application form for establishment of the abovementioned mills in the year 1990, it was mentioned in Clause-9 that the industrial effluent shall be' discharged in the 'saim nala' situated near the site and the said application has duly been approved by the concerned authority where-after the mills in question were established and approval for establishment of the mills on the above-mentioned application form shows that the 'saim nala' was also situated near the mills and as such, the petitioner's son had no problem with the dumping of industrial effluent of his mills, as he had himself constructed a pond over the land measuring 86-Kanals and 02-marlas and because of the availability of the 'saim nala' nearby the mills; that the construction of the sullage carrier was approved on the application of MPA of the area, namely, Moulana Muhammad Rehmat Ullah who made a written request in this respect; that feasibility reports of the scheme in question and all other proceedings were approved strictly in accordance with the law by the cabinet and budget of the said scheme was finally approved by the Provincial Assembly of Punjab; that apart from the above-mentioned scheme, many other schemes for construction of sewerage system were also approved in the same district during the same period but the NAB did not raise any objection against any other scheme and objection against the scheme in question has mala fidely been raised only on the ground that the sugar mills of the son of the petitioner are also situated in the area where the said scheme was executed; that there is absolutely no allegation that the funds allocated for the above-mentioned scheme were misappropriated by the petitioner or his any other family member or friend; that similarly it is not a case of the NAB/respondent that funds allocated for the above-mentioned scheme were not used for the construction of said scheme; that the scheme in question is not owned by the petitioner or his son and the said scheme is still owned by the Government; that son of the petitioner has been paying Government expenses for using the sullage carrier in question through a written agreement in this respect with the Government and even the sitting Government has executed an agreement in this respect with Ramzan Sugar Mills Limited, Chiniot; that it was Moulana Muhammad Rehmat Ullah, Ex-MPA (PP-74) on whose application, the above-mentioned project was approved and without conceding if, for the sake of arguments, it is presumed that any illegality, corruption or corrupt practice was committed in this case then the said Moulana Rehmat Ullah, Ex-MPA (PP-74) should have been made an accused in this case but instead of making him an accused, he has been made a prosecution witness in this case by the NAB authorities which speaks of their mala fides; that the scheme in. question was bona-fidely approved by the petitioner in the welfare of the "Abadies" of the area; that as per site plan of the above referred scheme, there are as many as seven villages and a godown of the food department of the Government of Punjab which are being benefited through the bovementioned scheme; that the NAB has arrested the petitioner in this case without any legal justification; that the present case against the petitioner is based on mala fides and the same is one of further inquiry, therefore, the petitioner may be directed to be released on post arrest bail. In order to embellish his arguments, learned counsel for the petitioner has placed reliance on the judgments, reported. as "The State v. Syed Muzafar Hussain Shah" (1998 MLD 118) and "Sarwar and others v. The State and others" (2014 SCMR 1762).
4. On the other hand, it is contended by the learned Special Prosecutor for NAB that as the petitioner is involved in corruption and corrupt practices, therefore, he has rightly been arrested in this case by the NAB/respondent; that Ramzan Sugar Mills Limited, Chiniot is owned by the real son of the petitioner, namely, Muhammad Hamza Shahbaz Sharif (co-accused) who was the C.E.O./Director of Ramzan Sugar Mills at the relevant time, therefore, the petitioner managed to get an application from Moulana Muhammad Rehmat Ullah, the then MPA (PP-74) and thereafter he approved a scheme for the construction of a sullage carrier near the above- mentioned mills of his son at the expense of the Government exchequer, in order to benefit his son and as such the petitioner by misusing his authority is guilty of corruption and corrupt practices; that the sullage carrier from village Daruta to the seepage drain of Bhowana was constructed with the cost of Rs.213- million of the Government exchequer and the main object of the above-mentioned scheme was to provide illegal benefit to the mills of son of the petitioner; that the management of Ramzan Sugar Mills at the time of submitting their application for establishment of the Mills and issuance of N.O.C. for the said mills undertook to make arrangements for discharge of the waste of the mills but they did not fulfill their above-mentioned obligation and finally the above sullage carrier was constructed for the discharge of industrial effluent of the mills at the expense of Government exchequer; the learned Special Prosecutor for NAB while referring to the site plan and different other documents which he produced before the Court during his arguments contends that after village Daruta, the route of the sullage carrier was turned towards Ramzan Sugar Mills in order to give undue advantage to the said mills; that funds were arranged for the above-mentioned scheme through different measures like re-appropriation of funds and supplementary grants which clearly shows that the petitioner had special focus on the speedy execution of the above-mentioned scheme in order to give undue advantage to his son; that in-fact there was no need for the construction of the above-mentioned project and a managed application was received by the petitioner through MPA of the area in order to give the impression that the said scheme was approved for the benefit of local population; that huge amount of Rs.213-million from the Government exchequer has been used by the petitioner for the benefit of his son; that in the cases registered under the provisions of National Accountability Ordinance, 1999, the scope of bail is very limited and bail can only be granted to an accused if he is seriously ill or if he is behind the bars for a very long period/several years, whereas the above grounds of hardship are not available to the present petitioner; that offence falls within the ambit of prohibitory clause of section 497, Cr.P.C; that the arguments advanced by learned counsel for the petitioner require deeper appreciation of evidence which exercise cannot be undertaken at bail stage; that there is no substance in this petition, hence, the same may be dismissed, In support of his contentions, learned Special Prosecutor for the NAB has placed reliance on the judgments reported as "Tallat Ishaq v. National Accountability Bureau through Chairman, and others" (PLD 2019 Supreme Court 112) and un-reported judgments of the Hon'ble Supreme Court of Pakistan passed in C.P. No.1542 of 2016 dated 26.08.2016 and C.P. No.1618/2016 dated 03.08.2016.
5. Arguments heard, Record perused.
6. We are fully conscious of the fact that the exercise of deeper appreciation of evidence cannot be undertaken at bail stage but at the same time, it is by now well settled that a bail petition cannot be decided in vacuum and tentative assessment of evidence/documents is permissible at bail stage. We may refer here the judgment passed in the case of "Awal Khan and 7 others v. The State through AG-KPK and another" (2017 SCMR 538) wherein at Paragraph No.8, the Hon'ble Supreme Court of Pakistan has observed as under:- "In a situation like this, this Court in the cases of:--
(1) Khan Mir v. Amal Sherin (1989 SCMR 1987)
(2) Muhammad Hanif v. Manzoor and 2 others (NLR 1981 SC 367)
(3) Syed Khalid Hussain Shah v. The State (2014 SCMR 12) held that when the medical evidence is in conflict with the ocular account then, benefit of doubt at bail stage must go to the accused. In the case of Muhammad Hanif v. Manzoor (supra), it was held as follows:- "It is true that at the stage of deciding the question of bail, the Court does not enter upon a detailed appreciation and examination of evidence, but it is also clear that the question cannot be decided in vacuum and the Court has to look at the material available when the bail is applied for. Now, in the present case, result of medico- legal examination of the deceased was available and the learned Judge of High ,,Court could not have refused to, look at it."
(underlining and bold is supplied for emphasis)
The august Supreme Court of Pakistan in the case of "Zaigham Ashrat v. The State and others" (2016 SCMR 18) at Para-9, Was pleased to observe as under:- "To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice.............." Similar view was taken in the cases of "Muhammad Hanif v. Manzoor and others" (1982 SCMR 53) and "Adrees Ahmad and others v. Zafar Ali and another" (2010 SCMR 64).
Moreover, it is by now well settled that despite the bar contained under section 9(b) of the National Accountability Ordinance, 1999, bail can be granted to an accused in a suitable case, by the Supreme Court of Pakistan and the High Court, while exercising, jurisdiction under Article 184(3) or under Article 199 of the Constitution of the-Islamic Republic of Pakistan, 1973, respectively as observed by the Hon'ble Supreme Court of Pakistan in the cases, of "Khan Asfandyar Wali and others v., Federation of Pakistan through, Cabinet Division, Islamabad and Others" (PLD 2001 Supreme Court 607), "Haji Ghulam Ali v. The State through A.G., N.W.F.P. Peshawar and another" (2003 SCMR 597) and "Himesh Khan v. The National Accountability Bureau
(NAB) Lahore and others" (2015 SCMR 1092).
We have further noted that the learned Special Prosecutor for NAB has himself referred and produced different documents before the Court during his arguments and at the same time, he. argued that the documents produced by the learned counsel for the petitioner may not be looked into as the same will amount to deeper appreciation of evidence. As different documents have been produced by the learned Special Prosecutor for NAB in support of his arguments, therefore, it would be unfair if we do not tentatively look into the said documents to appreciate and answer the arguments advanced by him. Likewise, after tentative assessment of the documents produced before the Court by, the learned Special Prosecutor for NAB it would be unjust, if we do not tentatively look at and appreciate the documents produced before the Court by learned counsel for the petitioner. Even otherwise, it not understandable that if the NAB has a strong case on merits against the petitioner then as to why it is afraid of tentative assessment of the evidence/record of this case. We, therefore, proceed to decide the instant petition after tentative appreciation of the record/evidence of this case.
7. As mentioned earlier, the main allegation levelled by the NAB against the petitioner is that he (petitioner) being the then Chief Minister Punjab, issued a directive dated 21.05.2014, on a self-managed request/application of Moulana Muhammad Rehmat Ullah, the then MPA (PP-74) and through the above- mentioned directive, he approved execution of construction of a sullage carrier from village Daruta and other allied "Abadies" to the seepage drain Bhowana, under the garb of a public utility scheme, whereas, the actual motive behind the approval of the said scheme was to provide an effluent disposal mechanism to Ramzan Sugar Mills Limited, Chiniot owned by the son of the petitioner, namely, Muhammad Hamza Shahbaz Sharif (co- accused). It is further alleged by the NAB that through the above-mentioned scheme, the petitioner provided undue monetary benefit of Rs.213-million to his son at the expense of the Government exchequer and as such he committed corruption and corrupt practices. We have noted that Ramzan Sugar Mills Limited, Chiniot was established in the year 1990 and from the date of its establishment till the date of above-mentioned directive dated 21.05.2014, issued by the petitioner, there was no complaint whatsoever before any forum regarding the industrial effluent of Ramzan Sugar Mills. During the above-mentioned period of 24-years, the petitioner and his other family members were arrested by a Military Dictator in the year 1999 and they remained behind the bars for a considerable period but even during the rule of 10-years of the said Military Dictator, no complaint whatsoever against Ramzan Sugar Mills was lodged before any authority. The NAB has itself recorded the statement of Circle Patwari, namely, Ameer Khan as a prosecution witness in this case. In his statement, the Circle Patwari has categorically mentioned that in the concerned revenue record (Register Haq daran-e-zameen for the year 1993-94), a pond measuring 10-marlas is situated in Khata No.125 of the concerned revenue estate (where Ramzan Sugar Mills limited, Chiniot is situated). He further stated that a pond measuring 40- kanals 02- marlas was situated in Khata No.140 and the same has been mentioned in the revenue record (Register Haq daran-e-zameen for the year 1997-98). Similarly, a pond measuring 86-Kanals 02-marlas was mentioned in Khata No.146 in the concerned revenue record ((Register Haq daran-e-zameen for the year 2001-02). Same was the situation in the concerned revenue record for the year 2005-06 wherein a pond measuring 86-Kanals 02-marlas was mentioned in Khata No.151. He further stated that in the revenue record for the year 2009-10, a pond was also shown in Khata No.151, land measuring 68-kanals 06-marlas. The above-mentioned statement of Circle Patwari and the fact that there was no complaint whatsoever against the industrial effluent of Ramzan Sugar Mills Limited, Chiniot for a period of 24-years have prima facie established that the management of Ramzan Sugar Mills Limited, Chiniot has adequately made arrangements for disposal of the industrial waste of the said mills and there was no special need of the petitioner to construct a sullage carrier for the disposal of industrial effluent of the mills of his son at the expense of Government exchequer. It is also noteworthy that directive dated 21.05.2014, was not passed on any application moved by the son of the petitioner but the same was issued on the written request of Moulana Muhammad Rehmat Ullah, the then MPA (PP-74). The above- mentioned Moulana Muhammad Rehmat Ullah made a written request at his letter pad for the construction of a sullage carrier from village Daruta to the villages Jamia Abad, Thatha Fateh Ali Saghar etc. The above- mentioned request of the concerned MPA was approved by the petitioner being the then Chief Minister. The Provincial Cabinet also approved the said scheme along with different other schemes of District Chiniot and also approved the release of funds for the said scheme, in its meeting held on 20.05.2015. The documents regarding approval of the above-mentioned scheme along with other schemes by the Cabinet have duly been produced before the Court by learned counsel for the petitioner. Even the budget wherein the expenses to be incurred on the scheme in question were mentioned, was placed before the Provincial Assembly of the Punjab and the said budget was also approved on 12.06.2015. The proceedings regarding the approval and execution of the scheme in question were prima facie carried out in accordance with the law. Even the approval of supplementary grants and re-appropriation of funds are permissible under the relevant rules i.e. the Punjab Delegation of Financial Powers Rules, 2006 (Amended Rules 2016). There is no allegation against the petitioner that he misappropriated the funds allocated for the above-mentioned scheme or received any kickbacks from the Contractor who was awarded contract for the construction of the said scheme. Similarly, there is absolutely no allegation that the funds allocated for the above-mentioned scheme were not utilized/spent on the said scheme or contract of the said scheme was awarded at an exorbitant rate.
8. The main grievance of the NAB is that as the mills of the son of the petitioner were also situated in the area where the scheme in question was executed, therefore, it should be presumed that the said scheme was not meant welfare the were of the local population rather the same was constructed to provide benefit only to the mills of son of the petitioner. We have noted that apart from the scheme in question i.e. sullage carrier scheme from village Daruta and other allied Abadies to the seepage drain Bhowana, many other schemes for construction of sewerage system in the same district i.e. District Chiniot were also approved during the same period (2015 to 2018). We have further noted from the documents placed on the record by learned counsel for the petitioner that approval of the above-mentioned scheme has been mentioned at Serial No.1145 in the relevant document i.e. in the Mid Term Development Program 2015-18, whereas, at Serial No.1146 of the said document, approval for construction of sewerage schemes for Mohallah Fateh Abad, Usman-Abad, Rasheeda Abad, Paris Road, Moazzam Shah, Shahbaal Shah, Bhowana, Rajan, Maqsood Abad etc. of District Chiniot against a sum of Rs. 199.694 million was also approved. Similarly, approval of construction of two other sewerage schemes in the village Karak etc. of District Chiniot and Mouza Jhang District Chiniot of different amounts of funds were also approved during the same period for the same district and approval of the said schemes have been mentioned at Serial Nos.1512 and 1513 of the above-mentioned document. Apart from the approval for construction of the above-mentioned sewerage schemes in the same district during the same period, many other development schemes were also approved for the same district (District Chiniot) during the same period. The NAB did not raise any objection against the other development works and construction of other sewerage schemes and the objection has been raised by the NAB only against the construction of sullage carrier from village Daruta to the seepage drain Bhowana of District Chiniot. The said objection has been raised merely on the ground that as the mills of the son of the petitioner were also situated on the route of the said sullage carrier, therefore, in the said area, no development work should have been carried out and if any development work is carried out then it should be presumed that the same was not for the benefit of the people of local area rather the same was executed only for the benefit of the son of the petitioner. If, the above reason of the NAB is allowed to prevail then it will amount to give a license and unlettered/unlimited powers to the NAB to file a reference against any member of the parliament on the execution of any development scheme, like construction of a road, or execution of gas, electricity, water supply scheme etc. in his area, on the ground that the said scheme was actually executed by the said member of the parliament for his own benefit instead of the benefit of the local population because his house/ property or house/property of his any relative or house/property of any of his friend (supporter) is situated near or around the development scheme executed in his area. This will create chaos in the country and the members of the parliament shall not be able to carry out any development work in their area/constituency and if they do so, they will remain under constant threat of the NAB, who may file a reference against them on the basis of above ground/ allegation. We have a lot of respect for the members of the parliament of our country irrespective of their party affiliations, except the members of parliament who, are virtually involved in corruption and corrupt practices or in any other crime. The members of parliament are true representatives of the great Pakistani nation. Our liking for the honest Members of Parliament and Politicians is quite natural because the founders of our motherland were also politicians. We therefore, cannot leave the Members of the Parliament of our country at the mercy of the NAB by declaring that as the property of a Member Parliament or his relative or friend is situated in the area where a development scheme was executed, therefore, it should be presumed that the said scheme was executed only for the benefit of the said Member Parliament and not for the benefit of the local population. At the same time, we do not say that the NAB should not proceed against any Member Parliament or Politician, if he is involved in corruption or corrupt practices but our only concern is that it should not reflect from the case that any individual has been victimized by the NAB. There should be some prima facie ease/evidence/material against him and the case should not be based merely on speculations and imaginations. We are therefore, not inclined to encourage the above-mentioned practice of the NAB.
9. We have also noted from the site plan of the above-mentioned scheme produced before the Court by the learned Special Prosecutor for NAB that the scheme/project in question starts from Village Daruta and apart from Ramzan Sugar Mills, a godown of the Food Department of the Government of Punjab and different villages like Dinpur Colony, Khizar Hayat village, Qamaryki colony, Adda Jamiabad, Bhutto colony, Chah Kamaryki, Khan ka Kot, Morian Wala Abadi and Mustafabad Colony are also situated on the sides of the above-mentioned sullage carrier. It is, therefore, evident that the sullage carrier in question has not been constructed only for the benefit of Ramzan Sugar Mills, rather the public at large of the above-mentioned villages is also being benefited from the said scheme. Even, it is evident from the report and parawise comments furnished by the NAB/ respondent and evidence of the NAB itself that Ramzan Sugar Mills is not the sole beneficiary of the above- mentioned sullage carrier though the NAB/respondent has tried to establish that the major discharge of effluent in the sullage carrier is of the Ramzan Sugar, Mills. It is also evident from the statement of Ghulam Shabbir Shah (PW), Sub-Engineer, Public Health Engineering Department, Sub-Division Bhowana District Chiniot that apart from the water discharge of Ramzan Sugar Mills, there was discharge of local "Abadies", as well as, discharge of godown of the Food Department in the above-mentioned sullage carrier which has clearly established that Ramzan Sugar Mills is not the sole beneficiary of the above-mentioned scheme. It is true that after its start from the village Daruta, a turn of about 50-Yards has been given to the sullage carrier across the Jhang Road towards the Ramzan Sugar Mills but the fact remains that the site plan of the scheme with the above-mentioned turn has duly been approved by the competent authority. Moreover, apart from Ramzan Sugar Mills, the godown of the Food Department of the Government of Punjab and majority of the villages like village Khizar Hayat, Adda Jamiabad, Qamary Ki colony, Bhutto colony, Chah Kamary ki, Khan ka Kot, Morian wala Abadi and Mustafa Abad colony are also benefited due to the above-mentioned turn in the route of the sullage carrier. It is further noteworthy that except from the villages Daruta and Dinpur, all remaining villages on the route of the above-mentioned sullage carrier are situated on the south western side of the Jhang Road and turn in the route of the sullage carrier was also given towards the south western side of the above-mentioned route, therefore, it is clear that the turn in the route of sullage carrier was given to benefit the maximum population of the area.
10. It is also an admitted fact that the sullage carrier scheme from village Daruta to the seepage drain Bhowana is owned by the Government of Punjab. Neither the petitioner nor his son is owner of the said scheme. The son of the petitioner, Muhammad Hamza Shahbaz Sharif, co-accused has been paying annual rent to the Government for the use of the above-mentioned sullage carrier and in this respect annual agreements have repeatedly been executed between the Government and son of the petitioner. Even, the sitting Government executed an agreement with the son of the petitioner on 15.09.2018 and received an amounts of Rs.52,500/-on 26.09.2018, as fee for use of the said sullage carrier.
11. We have further noted some other important aspects of this case. It is the case of NAB that the scheme in question has not been constructed for the public benefit rather the same has been constructed only for the benefit of Ramzan Sugar Mills owned by the son of the petitioner and approval of the said scheme through the directive dated 21.05.2014 of the petitioner which was issued on a self-managed request/application of Moulana Muhammad Rehmat Ullah, the then MPA (PP-74), meaning thereby, it was above-mentioned Moulana Muhammad Rehmat Ullah, Ex-MPA (PP-74), who played pivotal role by moving a fake application for the construction of the above mentioned scheme. Moreover, the said scheme was for the benefit of son of the petitioner, namely, Muhammad Hamza Shahbaz Sharif (co-accused). Under the circumstances according to the NAB case, Mian Muhammad Shahbaz Sharif (petitioner), Moulana Muhammad Rehmat Ullah, Ex-MPA (PP-74) and Muhammad Hamza Shahbaz Sharif (co-accused) were sailing in the same boat being main characters of the instant NAB case but we are surprised to note that the above-mentioned Moulana Muhammad Rehmat Ullah, Ex-MPA (PP-74) has been made a prosecution witness in this case instead of an accused. If, the aim of the NAB was to only punish the petitioner then the NAB could have first made the above-mentioned mover of the scheme (Moulana Muhammad Rehmat Ullah) an accused and then an approver in this case which is now a common practice of the NAB. The other person who was also sailing in the same boat is Muhammad Hamza Shahbaz Sharif (co-accused) but despite the authorization of inquiry in this case on 04.07.2018 and subsequent authorization of investigation and lapse of more than seven months, the NAB authorities have not decided till- today to arrest him. He (Muhammad Hamza Shahbaz Sharif, co-accused) earlier moved a petition i.e. Writ Petition No.246619 of 2018 before this Court for grant of pre-arrest bail in this case wherein the learned Special Prosecutor for NAB appeared before the Court on 20.11.2018 and made a categorical statement that till that time neither the NAB was inclined to arrest him nor any warrant of his arrest had been issued by the competent authority. In the light of above as the NAB was not inclined to arrest Muhammad Hamza Shahbaz Sharif (co- accused) at that time, therefore, his pre-arrest bail petition was disposed of as having become infructuous vide order dated 20.11.2018 with the direction to the NAB authorities that if they find any ground for arrest of the said co-accused then the same would be communicated to him, so that he may have sufficient time of at least ten days, for approaching the Court of competent jurisdiction. Even today, we have repeatedly asked the learned Special Prosecutor for the NAB, as well as, Additional Director NAB and Deputy Director NAB, Lahore present before the Court that as to whether at present the NAB is inclined to arrest the said co-accused, the learned Special Prosecutor for the NAB, as well as, Additional Director NAB and Deputy Director NAB, Lahore did not state that they were inclined to arrest him rather they stated that as the above-mentioned co-accused has been cooperating with the investigating officer, therefore, it was not deemed appropriate to arrest him. The learned Special Prosecutor for the NAB has further conceded that till-today the competent authority has not issued any warrant of arrest against the above-mentioned co-accused which means that till-today the NAB authorities are not inclined to arrest the above-mentioned co-accused, who, according to the NAB, was the sole beneficiary in this case. The entire prosecution case is based on documentary evidence which is already in possession of the prosecution. Even, the oral statements of the witnesses have also been recorded in this case but it is not understandable that what else is required by the NAB to take decision that as to whether Muhammad Hamza Shahbaz Sharif (co-accused) is to be arrested in this case or not. The conduct of the NAB authorities prima facie shows that they are satisfied that arrest of Muhammad Hamza Shahbaz Sharif (co-accused) is not required in this case because the entire prosecution case is before them and prima facie nothing else is required to be collected in this case. Under the circumstances, the discriminatory treatment of the NAB/respondent in respect of three persons involved in this case, who, according to NAB's own case were sailing in the same boat, is not understandable.
12. As mentioned earlier, according to NAB's case, Mian Muhammad Shahbaz Sharif (petitioner) Moulana Muhammad Rehmat Ullah, Ex-MPA (PP-74) and Muhammad Hamza Shahbaz Sharif (co-'accused) were sailing in the same boat but the NAB authorities instead of arraying Moulana Muhammad Rehmat Ullah, Ex-MPA (PP- 74) as an accused in this case, has made him a prosecution witness, Till-today the NAB is not inclined to arrest Muhammad Hamza Shahbaz Sharif, co- accused (who, according to NAB's own case was the main beneficiary in this case but on the other hand the NAB has vehemently been opposing the release of the petitioner on bail.
The above-mentioned discriminatory treatment of the NAB authorities and pick and choose made by them regarding the different persons allegedly involved in this case and standing on the same pedestal, is not understandable for us. The said acts of the NAB/respondent speak loudly about the mala fides of the NAB against the petitioner. We may clarify here that we have given the above-mentioned observations in order to show the mala fides of the NAB/ respondents and it is expected that the said observations shall not be made an excuse for the arrest of Muhammad Hamza Shahbaz Sharif (co-accused) by the NAB/respondent and decision, of the NAB not to arrest him may be a right decision, while keeping in view the attending circumstances of the case.
13. We have also noted that the NAB has recorded the statements of some witnesses under section 161, Cr.P.C. wherein they stated that due to the industrial waste of Ramzan Sugar Mills Limited, the water of the area became polluted which resulted into the spreading of hepatitis-C and other diseases in the area whereupon they contacted the local MPA, namely, Moulana Muhammad Rehmat Ullah and consequently the above-mentioned sullage carrier was constructed in the area but according to the said witnesses the said sullage carrier has been providing benefit only to the Ramzan Sugar Mills. It is not understandable that as to why the NAB authorities instead of taking a report from the Health Department of the area regarding spreading of the diseases as alleged by the prosecution witnesses of this case, namely, Habib Ullah, Ghulam Martaza, Ghulam Hussain and Muhammad Sufyan, has recorded statements of the said witnesses, who, Were simply laymen and no statement of any medical expert or employees of the Health Department has been recorded to establish that the above-mentioned disease actually spread in the area. Moulana Muhammad Rehmat Ullah, Ex-MPA (PW) also stated that he moved an application to the petitioner for construction of a sullage carrier because the water of the area became, contaminated due to the industrial waste of Ramzan Sugar Mills but we have noted that no such allegation about the industrial waste of Ramzan Sugar Mills has been mentioned in the written application of the above-mentioned prosecution- witness which he moved at the relevant time for the approval of the above- referred scheme. No other application. containing receipt of the Chief Minister Secretariat has been placed on the record to support the above-mentioned allegation of Moulana 'Muhammad Rehmat Ullah (PW). None of the above-mentioned prosecution witnesses ever moved any application before any competent authority regarding the industrial effluent of Ramzan Sugar Mills and they made their above-mentioned statements for the first time before the NAB authorities on 27.09.2018 and 14.11.2018 i.e. after the delay of two months twenty three days and four months and seven days, respectively, from the date of authorization of the inquiry in this case on 04.07.2018, though Ramzan Sugar Mills Limited, Chiniot was admittedly operating in the area from the last twenty four years. Prima facie, the above statements of the PWs are not sufficient to make an excuse for dismissal of this petition.
14. At the cost of repetition, it is observed that there is no allegation that the funds allocated for the above- mentioned scheme were not utilized/ spent on the said scheme. It is also evident from the perusal of the record that the public at large of the area is being benefited from the said scheme. Moreover, there is nothing on the record that the petitioner received any kickbacks or commission in awarding the contract of construction for the above referred scheme., Under the circumstances, it is a fit case for grant of post arrest bail to the petitioner.
We may refer here the case of "Muhammad Saeed Mehdi v. The State and 2 others" (2002 SCMR 282) wherein at Page Nos.285 and 288, it was observed as under:- Page-285" Allegations against the petitioner are that in November/ December, 1993 while holding the office of Chairman, Capital Development Authority, he sanctioned an amount of Rs.0.6 million to the Environment Directorate, CDA for landscaping near Gate No.3 of the Prime Minister's House, Islamabad in breach of procedure and without following the rules on the subject."
Page-288 "7. As regards the nature of accusation against the petitioners, the truth or otherwise of such allegations can only be determined at the trial by the Court after deep analysis of the evidence that may be adduced by the parties. Without going deeper into the merits of the prosecution case, it may suffice to observe that prima facie the petitioner does not appear to be guilty of misuse of official position or misappropriation of public funds to his own use or in order to cause monetary loss of public funds or to obtain illegal gain for himself or for any of his relatives or friends. It is not the case of the prosecution that the amount sanctioned by him was not actually spent on the works for which it was approved."
If, for the sake of arguments, it is presumed that there was any procedural irregularity in the exercise of jurisdiction by the petitioner, even then the same may not amount to the misuse of. authority so as to constitute an offence under section 9(a)(vi) of the National Accountability Ordinance, 1999. We may refer here the case of "The State v. Anwar Saif Ullah Khan" (PLD 2016 Supreme Court 276). The relevant part of the said judgment is reproduced hereunder:- "It is also apparent from the same precedent cases that a mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence, under section 9(a)(vi) of the National Accountability Ordinance, 1999 and that a charge of misuse of authority under that law may be attracted where there is a wrong and improper exercise of authority for a purpose not intended by the law, where a person in authority acts in disregard of the law with the conscious knowledge that his act is without the authority of law, where there is a conscious misuse of authority for an illegal gain or an undue benefit and where the act is done with intent to obtain or give some advantage inconsistent with the law....".
Reliance in this respect may also be placed on the case of "Anwar Saifullah Khan v. The State and 4 others"
(PLD 2000 Lahore 564) wherein the learned Full Bench of this Court with majority decision, granted post arrest bail to the petitioner of the said case inter-alia on the ground that the main allegation against him was of the misuse of his political powers and as the massive documentary evidence was to be recorded in the said case to prove the above allegation, therefore, the petitioner of the said case was found entitled, to the relief of post arrest bail. The relevant part of the above-mentioned judgment of this Court at Page-584 reads as under:- "This is a case of misuse of political power. The accusations against him flow from a massive documentary evidence. The petitioner naturally needs an occasion to see these documents, prepare his defence and face the trial. This entitles him prima facie, the concession of post-arrest bail. Seeing from the above perspective, we are clear in our mind that he has a prima facie case calling for exercise of our jurisdiction to order his pre-trial release. This will enable him to prepare his defence."
15. The argument of the learned Special Prosecutor for the NAB that bail can only be granted in the NAB cases on the ground of extreme illness or if an accused is behind the bars for several years without any progress in his trial, has no substance. If, from the tentative assessment of the evidence, a Court comes to the conclusion that sufficient material is not available on the record to establish the charges of the prosecution against him or if it is a case of further inquiry, even then, bail can be granted to the accused in NAB case as observed in the cases of "Muhammad Saeed Mehdi v. The State and 2 others" (2002 SCMR 282) and "Anwar Saifullah Khan v.
The State and 4 others" PLD 2000 Lahore 564). We are afraid that we cannot dismiss this bail petition merely on the above-mentioned hyper technical ground.
16. The judgments cited by the learned Special Prosecutor for NAB are distinguishable on their own facts.
17. Considering all the above-mentioned facts, we are of the considered view that it is a case of further inquiry and a case for grant of post arrest bail in favour of the petitioner is made out.
18. In the light of above discussion, this petition is allowed and the petitioner namely Mian Muhammad Shahbaz Sharif is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.10,000,000/- (Rupees Ten Million Only) with one surety in the like amount to the satisfaction of learned trial Court.
19. The above detailed reasons be read as part and parcel of our short order of even date which is reproduced hereunder:- "We have heard the learned counsel for the parties at length and perused the record.
2. For the reasons to be recorded later on, this petition is allowed and the petitioner namely Mian Muhammad Shahbaz Sharif is admitted to post arrest bail in Investigation in Ramzan Sugar Mills Scam authorized vide letter No. 1(61)HQ/958/NAB-L dated 7.12.2018, subject to his furnishing bail bonds in the sum of Rs.10 million (Ten million), with one surety in the like amount to the satisfaction of learned trial Court."