SARDAR AHMED NAEEM.J. Through this single order, we intend to decide the above mentioned petitions as common questions of law and facts are involved therein.
2. Petitioner, namely, Shahina Shakeel filed Writ Petition No.15993- 2020, on 14.3.2020, against the respondents and prayed for the following relief:
(i) Accept the instant petition;
(ii) Declare that the conduct of respondents No.1,2,4,5 and 6 is contrary to the Directive/Policy Guidelines dated 08.10.2019 and including the warrant of arrest dated 12.03.2020 are illegal, without jurisdiction, arbitrary, mala fide and to set them aside accordingly;
(iii) Declare that the conduct of respondent No.3 refusing to provide reasons for the order dated 13.03.2020 on the fictitious grounds since it was the first order of remand and the learned Judge was not required to give any reasons under section 24(d)NAO, 1999 is illegal without lawful authority and of no effect in law and to set it aside accordingly;
(iv) Declare the arrest and continued custody and detention of the detenue by the respondents /NAB as illegal and without lawful authority with the detenue being discharged and set at liberty forthwith;
(v) Declare that any actin contrary to the Directive/Policy Guidelines dated 08.10.2019 against the detenue would be discriminatory, illegal and ultra vires thereof;
(vi) Restrain the respondents/NAB from acting in violation of the Directive/Policy Guidelines dated 08.10.2019 or arresting the detenue in any other manner in an action with the allegations that are the subject matter of the instant petition; and
(vii) Grant such other relief to the petitioner as this Hon'ble Court may deem just and appropriate in the circumstances of the case"
3. The Court vide order dated 16.3.2020 requisitioned a report para-wise comments from the NAB authorities, submitted by the respondents.
4 Mir Shakil Ur Rehman, petitioner filed Writ Petition No.17809-2020 and sought the following declarations and directions:
(i) Accept the instant petition;
(ii) Declare the warrant of arrest dated 12.3.2020 as illegal, arbitrary, mala fide and to set it aside accordingly;
(iii) Declare that the conduct of respondent No.3 in refusing to provide reasons for the order dated 13.3.2020(and orders issued subsequent thereto) as void, illegal, without lawful authority and of no effect in law and to set them aside accordingly;
(iv) Direct the release of the petitioner forthwith, on such conditions, as this Honourable Court may deem appropriate;
(v) Restrain the respondents/NAB from acting in violation of the Directive/Policy Guidelines dated 08.10.2019 or arresting the petitioner in any other manner in an action with the allegations that are the subject matter of the instant petition; and
(vi) Grant such other relief to the petitioner as this Honourable Court may deem just and appropriate in the circumstances of the case"
5. The facts as emerged from the record, in brief are that two complaints were received by the NAB on 26.12.2019 and 10.02.2020 with the allegation that the petitioner, namely, Mir Shakil Ur Rehman having general power of attorney of Hakim Ali, Hadayat Ali and others was illegally allotted 54 plots measuring 01-Kanal each against 180-Kanals and 18-marlas of land acquired in Mauza Niaz Baig, Lahore by way of exemption. The allegation of undue favour to the petitioner in violation of the relevant laws/rules governing exemption with the connivance of the then Chief Minister Punjab, namely, Mian Muhammad Nawaz Sharif, was in addition to that.
6. The complaint verification was authorized by respondent No.1 vide concurrence dated 10.2.2020. The authority also authorized an enquiry against Mir Shakil Ur Rehman, the petitioner and ex-Chief Minister Punjab Mian Muhammad Nawaz Sharif, officers/officials of LDA and others vide Letter No.3- 1(1)(7599)/L/MW- I/NAB/HQ/2020 dated 12.3.2020. The chairman NAB also issued warrants of arrest of the petitioner Mir Shakil Ur Rehman, whereupon he was arrested on 12.3.2020 in execution of warrants of arrest. Hence, these petitions.
7. Learned counsel for the petitioners, inter-alia, contends:
(i) that it was thirty four years old matter, civil in nature does not fall within the ambit of NAO, 1999,
(ii) The prosecution has not collected any incriminating evidence against the petitioner and there was no justification to arrest him;
(iii) that the exemption policy in respect of M.A Johar Town has been misconstrued and misinterpreted as the case of the petitioner was that he was entitled to 30 percent exemption in the shape of developed plots;
(iv) that the petitioner was summoned at the stage of complaint verification and was arrested on 12.3.2020 and that warrants of arrest by respondent No.1 were also issued on the same date without affording an opportunity of hearing to the petitioner, thus, smacks mala fide;
(v) that the remand is not to be granted mechanically without application of mind, rather, it is to be granted only in cases of real necessity and that the detention of any person for want of competent or valid remand order would amount to illegal confinement and the same can be a valid ground to release that person on bail;
(vi) that the petitioner was suffering from various ailments which cannot be attended to or addressed by the facilities currently available at the place of his custody;
(vii) that there is violation of SOP dated 08.10.2019 which has binding force and cannot be completely bypassed or ignored;
(viii) that arrest of the petitioner is a result of vindictiveness as an embarrassing video of respondent No.1 went viral. Geo News while broadcasting said news questioned that why authenticity of video should not be believed blindly;
(ix) that the Constitution of Islamic Republic of Pakistan, 1973 jealously guards the respect of a citizen provides through Article 4 thereof that to enjoy the protection of law and to be treated in accordance with law is an inalienable right of every citizen whereas, Article 9 of the Constitution protects every person against any deprivation of life/liberty save in accordance with law.
In support of his contentions, learned counsel for the petitioners, has placed his reliance on "Muhammad Hanif and 2 others versus National Accountability Bureau (NAB), Sindh through Director General, Sindh and another" (PLD 2007 Karachi 429), "Rehman Versus The State" (2009 SCMR 181) and "Maj-Gen. (Retd).
Mian Ghulam Jilani Versus The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad" (PLD 1975 Lahore 65)".
8. On the other hand, learned Special prosecutor for NAB contended that the complaint verification was authorized by respondent No.1 and enquiry was also authorized followed by warrants of arrest, thus, the arrest of the petitioner was neither improper nor illegal, in any manner; that the petitioner was not arrested in pursuit of any business transactions, rather, as beneficiary of the loss to the public exchequer and the said offence comes under the ambit of NAO, 1999; that the factual controversies have been raised which cannot be resolved in constitutional jurisdiction; that the PWs examined under section 161, Cr.P.C., so far have implicated the petitioner; that the call up notice was perfectly legal and flawless; that the remand orders of the petitioner are based on cogent and solid reasons and the enquiry was still underway, thus, the petitions, both, are liable to be dismissed.
9. Before dilating upon merits of this case, it would be appropriate to examine the scope of National Accountability Ordinance, 1999 regarding enquiry, investigation and submission of report. A bare reading of section 18 (b) of the Ordinance insists that an enquiry/investigation could be initiated either by the Chairman or an officer of the N.A.B. duly authorised by him, thus the officer, so authorised shall enjoy all the powers as are available to all officers incharge of a police station within the meaning of Chapter-XIV of the Criminal Procedure Code. This aspect is also confirmed by Section 18 (e) of the Ordinance. Whereas, section 19 of the Ordinance provides additional powers of the officer conducting enquiry/investigation. It is manifest from section 19 (c) of the Ordinance that authorised officer has powers to examine any person acquainted with facts of the case including the witness or an accused as well. However, when a notice is issued under this section, the person, so required to be examined, such notice should contain a specific reference of required information in respect of the offence alleged or any material which can suggest that the provision of Ordinance/Rule or Order made thereunder have been contravened. Keeping in view the above touchstone, we can examine whether call up notice served upon the petitioner, prima facie, serves its purpose. The impugned call up notice is reproduced hereunder:- "2. You are required to appear in person along with complete record/documents to record your plea pertaining to illegal Exemption of 54x plots in Block-H. Johar Town Phase-II/allotted to you in the year 1986, being the holder of General Power of Attorney on behalf of Hidayat Ali and Hikmat Ali, by the then Chief Minsiter, Punjab, Mian Muhammad Nawaz Sharif in violation of the relevant Laws/Rules before Ms. Nirmal Hasni, Deputy Director, complaint verification Cell NAB Complex, Thokar Niaz Baig, Lahore on 05th March, 2020 at 10:00 AM, positively, without fail".
Grounds of arrest are also given hereunder: (a. Accused Mir Shakeel Ur Rehman in connivance with officers/officials of LDA, Ex Chief Minister Mian Muhammad Nawaz Sharif and others illegally got exempted/allotted 54 x plots measuring 1x Kanal each situated at Canal Bank H-Block, M.A Johar Town, Lahore in sheer violation of provisions of Exemption Policy of 1986 formulated for M.A Johar Town, Lahore etc. against 180 x Kanals of land purportedly acquired in Mouza Niaz Baig, Lahore (b. Accused got allotted/exempted these plots in sheer violation of Exemption Policy and illegally obtained all the plots of 1 x Kanal each despite the fact that as per Exemption Policy, maximum 15 x plots of 1 x Kanal denomination could be exempted/allotted but accused being in league with co-accused illegally got exempted 54x plots measuring 1 x kanal each including 2 x streets and in a compact block at prime location on canal.
(c. The accused in connivance with other co-accused persons illegally got included 2 x streets which were a thorough fare/state land in illegally exempted plots against the rules/regulation and law.
(d. The land so acquired was situated in 3 x different chunks/pockets but in violation of rules a compact block of land was obtained/allotted to the accused.
(e. In order to cover himself, the accused in connivance with other co-accused persons transferred the illegally exempted plots in the names of his wife as well as minor children and then got transferred the same in his own name.
(f. Furthermore, the accused in connivance with co-accused persons got allotted excess land at throw away price, therefore, accused obtained illegally pecuniary advantages through illegal means.
(g. The accused Mir Shakeel Ur Rehman is an influential person and may tamper the prosecution record, so his arrest is necessary; (h. Further said accused may abscond abroad, so to restrict his absecondance his arrest is necessary.
10. A perusal of the above notice and grounds of arrest reflects that enquiry being conducted is to for which purpose the examination and production of documents are necessary, is evident, therefore, call up notice cannot be declared as illegal, in particular, when the petitioner has not challenged the contents of call up notice or referred to some ambiguity.
11. Learned counsel for the petitioner has thrown a serious challenge to remand orders dated 13.3.2020 and 25.3.2020 by submitting that learned Accountability Court acted with excessive coercion and failed to exercise the authority vested in him. A review of the record demonstrates that application under section 24 (D) of National Accountability Ordinance, 1999 for obtaining 15-days physical remand of the petitioner was moved by Muhammad Abid Hussain, Assistant Director/ Investigating Officer of N.A.B. and the learned Administrative Judge (Accountability Court), Lahore, vide order dated 13.03.2020 allowed 12-days remand after hearing the parties and observed as under:- 'The contention by learned counsel for the accused that the accused is entitled to be discharged from the case.
The perusal of record shows that Mir Shakeel ur Rehman accused has yet to explain the extra ordinary exemption in his favour by the then Chief Minister Punjab. Therefore, the contention by the learned counsel for the accused is premature, therefore, the physical remand of the petitioner was extended till 07.04.2020 through a detailed and well-reasoned order dated 25.03.2020.
12. The petitioner is still under custody and on physical remand till 07.04.2020. The legal requirements of the grounds and substance of arrest were duly/admittedly conveyed to him as envisaged under section 24 (a) of the National Accountability Ordinance, 1999 and Article 10 of the Constitution of Islamic Republic of Pakistan, 1973.
A well reasoned order was passed by learned Administrative Judge after satisfying its judicial conscience as there were reasonable grounds for believing that accusations or information were well founded justifying custody of the petitioner. The argument of learned counsel for the petitioner that it was a transaction between the private parties and, thus, N.A.B. is precluded to interfere in the matter has no force as transaction between the parties is not the dispute rather exemption of 54 plots along with two streets is the subject matter of the enquiry. A review of the record demonstrates that the petitioner got General Power of Attorney from Hidayat Ali, Hikmat Ali and others on 22.05.1986, for making statement before the L.D.A. He filed the application for interim development of the land on 04.06.1986, summary was approved on 11.07.1986 and 54 kanals land alongwith area of two streets were exempted on 05.08.1986. Ultimately, the petitioner sold the said land to his wife/children on 29.09.1986 against consideration of Rs.18,00,000/- and then the entire land was transferred in favour of the petitioner on 02.12.1998. At this juncture, it may be mentioned that petitioner being Mukhtar-e-Aam got exempted 54 kanals of land situated at M.A. Johar Town facing canal along with 02 streets which were merged/formed into a bigger plot of 58 kanals 18 marlas. It was asserted that the petitioner paid the outstanding price/dues of the excess land but it goes without saying that neither through exemption policy nor under any other law state land comprising upon the area of two streets/thoroughfare could be given to anyone, which also resulted into smashing/destroying the lay out plan/map of the scheme. Even the entitlement of the petitioner to have the excess land measuring 04 kanals 18 marlas is not borne out from the available record.
Another limb of the argument was misreading and misinterpretation of the exception policy. Suffice it to observe that question of misinterpretation of 'exemption policy' does not arise as the allegation against the petitioner is that he in connivance with holders of concerned public office, through illegal means i.e. in multiple violations of 'Exemption Policy' and law obtained valuable property including state land i.e. area of two streets/thoroughfare, which prima facie, attracts offence under section 9(a) of the National Accountability Ordinance, 1999; furthermore, the above available record suggests that exemption policy was stretched in favour of the petitioner as reflected by the statements of the then Director General L.D.A. and Secretary to Chief Minister, recorded during the enquiry as it was recommended that this case may not be quoted as precedent. Admittedly the matter is 34 years old but the National Accountability Ordinance, 1999 has retrospective effect and the matter squarely falls within the domain of National Accountability Bureau in the light of section 2 of the National Accountability Ordinance, 1999.
13. Another ground urged by the learned counsel for the petitioner was his ailment as he was suffering from different/multiple diseases. To augment his contention, learned counsel for the petitioner referred two Photostat copies of certificate of Acupuncturist, namely Hellen Attwool and Dr. Nazar Qureshi. The certificates, both, indicate that petitioner was patient of "Tinnitus" and was advised M.R.I. for the treatment of kidney pain and headache. He was also referred to consultant orthopaedic surgeon for management of his disease. A similar submission was made by the learned counsel when Writ Petition No.15993-2020 was taken up by the Court and on 16.03.2020, Special Prosecutor, NAB made the following statement: "...Learned Prosecutor submits that the detenu shall be provided immediate medical checkup, daily medical checkup, CPAP machine (for sleep Apnea), medicines, home food, clothes, newspapers, books, writing materials and will be permitted to see his blood related relatives, his counsels (who are signatory of the power of attorney) and Dr. Azmat, his personal physician whenever so required. However, the request of the petitioner will be entertained in accordance with law".
Learned counsel for the petitioners has not appended any material on record that the above diseases are hazardous to his life.
14. Learned counsel for the petitioners seeking shelter of Memo No.3-5/COD/NHQ/19/(48-P/S) dated 08.10.2019 on the subject "Procedure for summoning of businessmen in NAB proceedings/policy guidelines" contended that the petitioner was never delivered a questionnaire and the petitioner could not have been examined in disregard of the said policy. Assuming that the petitioner is a businessman but the matter under enquiry is not regarding a business or business transaction, thus the petitioner could not make out a case to avail the benefit of said policy.
15. It was argued that the petitioner was involved in this case by respondent No.1 as the petitioner being head of Jang/Geo Group continued factual reporting including audio/video tapes against the said respondent.
However, it was a mere assertion and no admissible material was available on record in support of such assertion.
16. It is not denied by the petitioner that the warrants of arrest were issued by Chairman NAB and that he also authorized enquiry on 12.3.2020. The allegation against him is regarding the period, when Mian Muhammad Nawaz Sharif was Chief Minister Punjab. He has acknowledged the receipt of call up notice and has not pleaded that contents of said notice were ambiguous or incomplete. The learned Administrative Judge Accountability Court extended remand of the petitioner. The plea of his false involvement on account of malafide in retaliation to video clip or audio transcript at this stage does not appear to be well founded. Under Article 129
(e) of Qanun-e-Shahadat, there is presumption that official acts have been regularly performed i.e. with due regard to the relevant formalities and within the relevant powers and that a conclusion of excess and irregularity is, therefore, not to be lightly reached. No immunity from accountability is available to any person particularly when the matter concerns the commission of crime or fraud and the question being of loss to public exchequer and misuse of public power, thus, question of violation of Article 13 of the Constitution also could not arise. If someone hampers the enquiry deliberately and with malice section 31 of National Accountability Ordinance, 1999 has also taken care of such like situation. There is no law conferring immunity from criminal prosecution.
The information laid before the Judge Accountability Court was not false, which raised suspicion that petitioner committed the offence within the purview of National Accountability Ordinance, 1999 and, thus, his custody can neither be termed as illegal nor improper for the purpose of maintaining a constitutional petition to declare his arrest as unlawful. Perusal of the case laws cited by learned counsel for the petitioners reveals that the facts and circumstances of the said cases were not identical to the facts and circumstances of the case in hand and are distinguishable and not applicable to the facts and circumstances of the instant case. In such like cases regarding exercise of writ jurisdiction, the apex court in case titled "Birg. (Retd.) Imtiaz Ahmad Versus Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others" (1994 SCMR 2142), in para 12 of page 2153 observed as under: "12. The power under Article 199 of the Constitution is the power of judicial review. That power "is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts". (Lord Scarman in Nottinghamshire C.C. v. Secretary of State (1986) (All ER 199, 204). Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamood ur Rehman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions:- "It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency".
Seeking guidance from the observations of their lordships and respectfully following the same, we proceed to dismiss the above petitions, being meritless and premature.
17. Before we part with this judgment, it may be mentioned that as the matter is still being enquired and at its initial stage, however, the petitioner may avail the remedy for his release on bail at appropriate stage, if so advised.
18. It is also clarified that the observations made above are based on available material and tentative in nature, thus, the learned trial court shall not be influenced thereby in any manner, at trial.