Petitioner seeks post arrest bail on the following grounds of arrest:- a) Accused Muhammad Sibtain Khan, Ex-Minister , Mines and Mineral Department on unsolicited proposal of Arshad Waheed, CEO of M/s Earth Resources Private Limited (ERPL) malafidely initiated the process of the case of Joint Venture with Government of Punjab for establishment of Hematite and Magnetite mining operation at Chiniot and Rajoa through Secretary Mines and Mineral Department. b) Accused Muhammad Sibtain Khan, Ex-Minister , Mines and Mineral Department, in connivance with other accused persons malafidely approved the note dated 14.07.2007 of Secretary , Mines and Mineral Department, Punjab, wherein it was proposed that M/s ERPL be asked to submit the terms and conditions for joint venture despite the fact that M/s PUNJMIN was not competent to enter into joint venture agreement with private company . c) Accused Muhammad Sibtain Khan, being Chairman PUNJMIN chaired the 69th BoD meeting of PUNJMIN and malafidely decided to hold negotiation and draft of MOU with M/s ERPL., d) Accused Muhammad Sibtain Khan, Ex-Minster Mines and Mineral malafidely recommended the summary for approval of Joint Venture between M/s. ERPL and M/s. PUNJMIN for the approval of CM, Punjab despite the fact that neither the competitive bid was initiated nor any auction process was adopted: e) Accused Muhammad Sibtain Khan was given fair chance to explain the allegation levelled against him, however , he failed to submit any plausible reply . f) It is likely that accused may escape/underground himself and may tamper the prosecution evidence through coercion, criminal inducement and criminal intimidation.
2. Brief background of the case as prese nted by the NAB before this Court is that on 24.06.2010 an order was passed in W.P. No.10809/2008 directing the Chairman, NAB to hold a detailed inquiry regarding illegal award of contract to M/s Earth Resources Private Limited (ERPL) of Iron ore deposits at Chiniot and Rajoa by the Punjab Mineral Development Corporation (PUN JMIN) while declaring the contract as void ab-initio. Consequently , an inquiry was authorized on 09.02.2012 by the Director General NAB, Lahore whereafter on 17.01.2013 the Inquiry Officer recommended for up gradation/conversion of inquiry into investigation while concluding that one Arshad Waheed, CEO, M/s. ERPL through misrep resentation of facts with ulterior motives tried to get the mining and lease rights, thus attempted to cause loss to national exchequer by committing a criminal breach of trust punishable under National Accountability Ordinance , 1999. However , on 14.02.2013 the said inquiry was closed in the Executive. Board Meeting (EBM) of NAB and the closure report was submitted before the Lahore High Court, Lahore on 06.05.2014, which was conseq uently consigned to record on 12.11.2014 . Significantly , it was after about five years that on 13.04.2018 the Chairman, NAB reopened/authorized the inquiry and just on 26.04.2018 in a fresh inquiry it was revealed that a joint venture agreement was made with ineligible firm, namely , ERPL by the PUNJMIN who was not competent to execute such contract and that it was done with mala fide to advance favour to the firm. According to the prosecution, the petitioner misused his authority as Chairman of PUNJMIN and Minister of Mines and Mineral, Government of Punjab who approved the proposal to ask M/s ERPL to submit terms and conditions for joint venture and also directed to negotiate with M/s ERPL and to draft a memorandum of understanding and then approved joint venture between M/s ERPL and PUNJMIN , therefore, was held responsible for making a bad policy and also failed to conduct his department under the rules of business. He is alleged to have actively involved in the process of award of contract/joint venture agreement between M/s ERPL and PUNJMIN.
3. The stand of the NAB taken in the report and parawise comments is that the technical committee was constituted by the Secretary , Mines and Mineral Punjab which submitted its report on 31.07.2007 in which it did not verify the credential, financial standing or expertise of M/s ERPL in the mining sector as it did not possess the requisite qualifications and that no competitive procedure was adopted to award joint venture agreement. As per Rule 6 of Rules of Business, 1974, the policy matter and conduct of business were the responsibilities of the said Minister . The Law Department illegally made an observation that the respective parties were competent enough to enter into said agreement. According to NAB, the competency of PUNJMIN to make MOU or joint venture agreement with M/s ERPL, if was found, lacking, as it was specifically pointed out by the Law Department on 04.12.2007 that terms and conditions settled between the parties were responsibility of the administrative department. It was also alleged by the NAB that the petitioner directly received unsolicited application of Arshad Waheed/CEO of ERPL for a joint venture without adopting any official channel yet the petitioner gave a direction to the Secretary , Mines and Mineral to process and put up a detailed report within seven days by treating it as most urgent case.
4. Learned counsel for the petitioner submits that the petitioner remained Minister of Mines and Mineral from 2004 to 18.11.2007 and under section 15(3) of Punjab Mineral Development Corporation Act, 1975, the petitioner had only one vote. On 23.03.2007 an application was presented to him by said Arshad Waheed, CEO of M/s ERPL on which he had put up a note i.e. "Please process and put up a detailed report within seven days treating as a most urgent case". The Secretary , Mines and Mineral prepared a note proposing that M/s ERPL might be asked to submit a detailed proposal containing their technical feasibility and capability with a plan of action to overcome the difficulties being faced by PUNJMIN and also to come up with the terms and conditions for joint venture leading to mining and utilization of iron ore. After such detailed proposal they may be asked to make representation in the meeting to be chaired by the petitioner and attended by Secretary and Director General, Mines and Mineral. This was signed on 24.07.2007 by the petitioner . On 31.07.2007, the General Manager , Technical Advisor and Chief Inspector of Mines wrote a letter to the Secretary Mines and Mineral Department Government of Punjab, Lahore conveying their considered opinion that by way of joint venture between PUNJMIN and M/s ERPL iron ore scheme at Chiniot and Rajoa will be successful and as per scope of work/T OR in the larger interest of work within the given time frame which would be a great significance in terms of employment, mechanization and transfer of technology , etc. A working paper was, therefore, prepared in the 69th meeting of the Board of Directors of Punjab Mines and Mineral Department held on 19-09-2007 which was chaired by the petitioner . In the table agenda item No.1 it was directed by the Board to PUNJMIN to hold negotiations with ERPL and put up the case to Secretary Mines with agreed MOU for further approval by the Government of the Punjab.'On 16.11.2007, the Secretary Mines and Minerals prepared a summary for Chief Minister which was signed by the petitioner being the Minister on 17.11.2007 with a separate note by the Chief Secretary . On 24.11.2007 the Principal Secretary to Chief Minister approved the proposal to enter into the joint venture agreement with M/s ERPL in terms of enclosed draft agreement. On 04.12.2007, the Law Secretary mentioned his opinion on the vetted copy that the parties were competent to enter into and sign the agreement. The petitioner resigned on 11.07.2007 but then on 06.12.2007 agreement was signed between M/s ERPL and PUNJMIN . On 10.03.2008 a note was put up by the Managing Director , Mineral Development Corporatio n proposing for increase in the bank guarantee of at least Rs.50 million, reduction in lockup period of shares of PUNJMIN from 10 years to 3 years, and TORs about technical equipment and services of PUNJMIN and time bound work plan from ERPL . On 31.05.2008 a note was put up by the Managing Director , Mines and Mineral Department to the Chief Secretary stating that on ground the Possession was not given to ERPL . Interestingly , on 07.07.2008 in the 70th Meeting of the Board of Directors, the minutes of 69th Board meeting were confirmed, meaning thereby that the decision of the board was adopted and approved.
Meanwhile, a joint venture meeting between PUNJMIN and M/s ERPL was conducted on 02.08.2008 in which it was proposed that the legal remedies and negotiations with the ERPL in terms of clause (5) of the agreement be seen with the option to suspend the resumptions of work on its two iron ore mines after completing formalities.
Meanwhile, Arshad Waheed filed W.P. No.10809/2008 against the Government of Punjab in which a report was submitted by the NAB authorities in paragraph-8 of which it was admitted that no loss was caused to the national exchequer as only an attempt was made since the contract was cancelled by the Government of Punjab. First Information Report No.21/2016 was later registered against the petitioner and others in which the petitioner was discharged on 17.08.2016. On 24.06.2010 a decision of dismissal of the said writ petition was made by the Single Bench of this Court and in para-66 it was directed that a copy of judgment be placed before the Chairman, NAB and the compliance report be placed before the Deputy Registrar (judicial) of this Court. On 12.11.2014, the report was placed on record and the file was consigned to record. With this background the petitioner , prays for grant of post arrest bail.
5. Conversely , the learned Special Prosecutors for NAB submit that no procedure to conduct open auction was followed. Add that under Rule 108 of the Rules of Business, 1974 the procedure was not followed and that the inquiry was reopened upon the recommendations of the Chairman, NAB, therefore, the petitioner is prima facie alleged to have committed criminal breach of trust, therefore, this writ petition be dismissed.
6. Arguments heard. File perused.
7. After hearing the learned counsel for the petitioner and the learned Special Prosecutor for NAB, it is straightaway observed that the case of the prosecution against the petitioner is that he in the capacity of Provincial Minister for Mines and Minerals and as Chairman of PUNJMIN could not execute a contract with ERPL through the Chief Executive/Arshad Waheed but this inquiry was initiated after when the decision was made on 24.06.2010 by this Court in W.P.No.10809/2008 initially by Arshad Waheed, CEO holding that PUNJMIN could not make an agreement of the contract for exploration to lease out the lands to a company for exploration/excavation of mines and minerals i.e. iron ore. This was obviously to operate prospectively . Interestingly , in the said petition a report was submitted stating that "no loss was caused to the public exchequer only an attempt was made and the contract was cancelled by the Government of Punjab," and as a consequence thereof the earlier inquiry was dropped vide RBM dated 14.02.2013.
8. But surprisingly without bringing on record any fresh ground or to digging out any hidden truth, the inquiry was reinitiated on the same allegations vide letter dated 26.04.2018 issued by the D.G. NAB. The reasons and circumstances were, apparently , neither brought before the Chairman NAB, nor he had formed opinion on the basis of material. He had just ordered the re-opening of inquiry without holding any official of the NAB responsible for closure of the inquiry . It is not the whims and designs unsubstantiated by the fresh disclosed facts on the basis of which it could re-open the closed inquiry in a slipshod manner . The reasons, if any, are shrouded in mystery .
Needless to observe here that with greater powers always lies the greatest responsibilities. The powers of the Chairman are also structured by law and conscience, and therefore, he must be guided by them and not by unperceived perception infatuated by his subjective approach so as to use his discretion for taking some kind an imaginary blaming act. The prosecution has not alleged that the petitioner has got any kickbacks, made financial gains or caused any corresponding loss to the State. It is also not their case that the possession of the site was handed over to the ERPL who had starte d excavation and exploration of the minerals without giving any benefit to the State.
9. According to the prosecution, the matter started when an application was presented to the petitioner being the Minister/Chairman PUNJMIN by EPRL on which a note was given that a proper application through proper channel be given. It was then that the said application had been routed through the Secretary , Mines and Minerals and the summary duly forwarded by the petitioner was presented to the Chief Minister , Punjab and then was approved by him. Prior to the grant of contract, the petitioner relinquished the charge on 18.11.2007 and a positive advice was also solicited from the Provincial Law Secretary . The petitioner was not the signatory of the agreement and the decision so made in the 70th meeting of the Board was also subsequently approved by the Board. According to the NAB it was entirely the responsibility of the concerned Minister but the fact remains that prima facie he had followed the required procedure. An FIR No.21/2016 was registered against the petitioner earlier at P.S. ACE, Faisalabad but the petitioner was discharged on 17.08.2016.
10. In the facts and circumstances, merely violation of some law or the procedure at the most, without any mens rea the case of the prosecution needs further Inquiry . The record so far presented before this Court shows that the petitioner has directed to follow the procedure before awarding the contract. Obviously , the decision was taken by the Chief Executive of the province upon the summary whereafter the contract was awarded. The offence of cheating public-at-large, therefore, needs further probe as its ingredients are not prima facie reflecting on record.
11. Section 9(b) of the National Accountability Ordinance, 1999 provides as follows: "All offences under this Ordinance shall be non- bailable and, notwithsta nding anything contained in sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
Since the first hand remedy before trial court is specifically ousted, the natural question arises that whether this right is not available to an accused involved in NAB offence, when such right is available to persons accused of other offences. To find out such answer of this question, it is expedient to understand evolution of jurisprudential aspect of bail.
12. The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. Circuit courts during medieval times in Britain held quarter sessions in different parts of country . This led to evolve a series of laws for release of the under trial prisoners on securing a surety . The provision for bail can also be traced back to Magna Carta itself as follows: "No free man shall be seized or impris oned or stripped of his rights or posse ssions, or outlawed or exiled, or deprived of his standing in any othe r way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land"
Thereafter , another great milestone in the history of England called the Petition of Right of 1628 during the reign of Stuarts, which though reluctantly accepted and acknowledged that no free man should be imprisoned or detained, except by authority of law. The concept was further evolved in shape of" Habeas Corpus Act of 1679". This Act provided that many of the King's subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The next great landmark in English history is the Bill of Rights of 1689 which provides that "excessive bail ought not to be required...." Thereafter , the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followe d by the Eighth Amendment to the Constitution. The right to liberty is also guaranteed in the International Covenant on Civil and. Political Rights (ICCPR), to which Pakistan is a party .
13. By now, the basic rules may perhaps be terse ly put as bail and not jail, except where there are certain circumstances ..." and every man is deemed to be innocent until duly tried and duly found guilty . Thus the issue of bail i's one of liberty , justice, public safety and burden of the public treasury , all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As a presumably innocent person, an accused is, therefore, entitled to freedom. Punishment, by plain logic, has necessarily to follow a determination of guilt, accompanying conviction, and can never be anterior thereto. Bail is not to be withheld as a punishment.
Incarceration during trial, therefore, can never be punitive in nature and is never intended to operate as a punishment. In civilized societies, deprivation of liberty must be considered a punishment, unless it is essential to ensure that an accused person will not stand his trial when called upon. Most impo rtant principle amongst all is that grant of bail is the rule and refusal is the exception. Therefore, the grant of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case.
Obviously , it can be withheld only in the exceptional circumstances.
14. The Constitution of Islamic Republic of Pakistan ensures the elimination of all forms of exploitations under Article 3. It also guarantees the protection of law and to be treated in accordance with law as unalienable right of every citizen with particular emphasis that no action detrimental to the life, liberty or body of the person shall be taken except in accordance with the law under Article 4. Further , "no person shall be deprived of life or liberty save in accordance with law" as written in Article 9. The Constitution also guarantees that no person who is arrested shall be detained in custody without being informed of the grounds of his arrest and shall not be denied the right to consult and be defended by a legal practitioner of his choice as enshrined under Article 10. Right to fair trial and due process is also ensured under umbrella of Article 10-A of Constitution. Every citizen is also guaranteed freedom of movement to remain in, enter and move freely as defined in Article. With such Constitutional guarantees, it would be quite contrary to the concept of personal liberty that a person should be punished without conviction or he should be deprived of his liberty on belief that he will tamper with the witnesses if left at liberty .
Thus bail is the rule and committal to jail an exception warranted only in most extra ordinary circumstances.
15. The National Accountability Ordinance expressly ousts the jurisdiction of courts to grant an accused person bail, which means that accused people have to approach the high courts for bail in their constitutional jurisdiction which may causes overburdening them but demure of the laws of High Court, in our humble opinion, would perhaps make us guilty of breach of our oath as Judges of High Court.
A beautiful quote of Justice Cornelius is reproduced to emphasis on the sacredness of the High Courts:- "The writ jurisdiction of this Court has always been there and shall continue to come at the rescue of those citizens of this country who have no alternate and efficacious remedy available to them It is one of the flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain there perfume. God fulfills Himself in many ways and that we (Judges) are the humble instruments of His fulfillment The writ jurisdiction is the modern manifestation of God's pleasure and that God's pleasure dwells in the High Court".
Borrowed from Chief Justice Cornelius of Pakistan by Ralph Branbiti, published by Oxford in 1999 at Page 42-43.
16. Coming back to the question of grant of bail in offences in National Accountability Ordinance, 1999, it is by now well settled that a statutory ouster of jurisdiction of all Courts could not affect the jurisdiction of a High Court to grant bail under Article 199 of the Constitution. The primary feature of Article 199 of Constitution is to provide a forum to an aggrieved person who has no other adequate remedy . The Secondary feature of Article 199 of Constitution is the protection of fundamen tal rights. When a citizen complaints violation of fundamental right, High Court should exercise its power under Article 199 to investigate the matter and pass such order as may be found just, legal and equitable. The scheme of the Constitution makes it obligatory on the part of superior Courts to interpret Constitution, law and enforce fundamental rights. There is no cavil with the proposition that ultimate arbiter is the Court which is the custodian of the Constitution. The rights against arbitrary detention as provided under Constitution contemplates that every imprisonment without trial and conviction is prima facie unlawful. It is also basic principle that cornerstone of the administration of justice is that all people are entitled to due process of law and are assumed to be innocent unless proved guilty . Every citizen must be treated with equality and his dignity , liberty , life and honour must be guaranteed as envisaged in the Constitution. The High Court has not only a right but a fundamental constitutional duty that these fundamental rights are not infringed. With the expanding horizon of Articles dealing with Fundamental Rights, now every executive action of the Government or other public bodies, if found arbitrary , unreasonable or contrary to law, is amenable to the writ jurisdiction of the Superior Coats to be validly scrutinized on the touchstone of the Constitutional mandates.
Here, it would be appropriate to refer to Subhash Kumar Sharma v. State on 20 June, 2018 reported as AIR 1991 SC 420 in which it is observed that:-- "(iii) Curtailment of personal liberty during trial, has, therefore, to be limited to those cases in, which it is absolutely essential, and in which, in the absence of such curtailment, the process of trial is likely to be hampered by the accused, whether by vanishing or by unduly influencing the trial process, by intimidating the witnesses, or otherwise. If no such apprehension can legitimately be expressed, there can be no reasonable ground to keep the accused incarcerated, as incarceration would then assume a punitive avatar .
(vi) It would be entirely impermissible for the court, at the stage of deciding the bail application of the accused, to subject him to a premature trial, far less to return any finding, even tentative, regarding the justifiability of the charge against him.
(vii) The Court cannot, however , while adjudicating a bail application adopt an entirely accused-centric approach, unmindful of the prevailing public and societal interest hanging in the balance. The right of the accused to liberty , prior to his being found guilty of the charge against him has to be weighed against the public interest involved, in ensuring that the trial proceeds /lady and unhindered."
17. Undoubtedly , the extraordinary jurisdiction under Article 199 of the Const itution is to be exercised with conceptive and caution, just to advance the cause of justice and not to frustrate or defy the intent of law. Such exercise must be made to prevent miscarriage of justice and abuse of NAO, 1999. It cannot be withheld as a punishment. This Court also cannot elaborate the sifting of evidence but make a tentative assessment of the material laid before this Court. At this stage, an inquiry by this Court is permissible to seek an answer to the question of the involvement of the petitioner without going into deeper appreciation of evidence. This right of the petitioner to approach this Court is not only a constitutional mandate but is independent of any source of jurisdiction such as section 497, Cr.P.C. or 9(a) of NAO, 1999. The ample powers of this Court are meant and reserved for the enforcement of the fundamental rights of the citizen of this country , particularly those who have been retained by the NAB authorities in offences, which according to the wisdom of this Court, calls for further inquiry . Reliance is placed upon TALLA T ISHAQ v. NATIONAL ACCOUNABILITY BUREAU through Chairman and others (PLD 2019 SC 112), NATIONAL ACCOUNT ABILITY BUREAU through Chairman v. MURAD ARSHAD and others (PLD 2019 SC 250), KHAN ASFANDY AR WALI and others v.FEDERA TION OF PAKIST AN through Cabinet Division, Islamabad and other s (PLD 2001 SC 607) SECRET ARY, REVENUE DIVISION and others v. MUHAMMAD SALEEM (2008 SCMR 948), GOVERNMENT OF SINDH through The Chief Secretary Karachi and 4 others v.
RAEESA FAROOQ and 5 others (1994 SCMR 1283 ), REGARDING CORRUPTION IN HAJJ ARRANGEMENTS IN 2010 (2011 PLC (C.S.) 1489 ), FEDERA TION OF PAKIST AN through Secretary , Ministry of Interior . Islamabad v.
Mrs. AMA TUL JALIL KHAWAJA and other s (PLD 2003 SC 442), SUO MOTU ACTION REGARDING ALLEGATION OF BUSINESS DEAL BETWEEN MALIK RIAZ HUSSAIN AND DR. ARSALAN IFTIKHAR ATTEMPTING TO INFLUENCE THE JUDICIAL PROCESS (PLD 2012 SC 664) WATAN PARTY and another v. FEDERA TION OF PAKIST AN and another PLD 2011 SC 997), MUST AFA ANSARI v. DEPUTY COMMISSIONER, CHITT AGONG HILL TRACTS, RANGAMA TI AND OTHERS (PLD 1965 Dacca 576), CORRUPTION IN HAJJ ARRANGEMENTS IN 2010 (PLD 2011 SC 963), Subhash Kumar v. State of Bihar and others (AIR 1991 SC 420), OLAS KHAN and others v. CHAIRMAN NAB through Chairman and others (PLD 2018 SC 40), NADEEM MAJEED v. THE STATE and others (2007 SCMR 1958 ), CHAIRMAN, NATIONAL ACCOUNT ABILITY BUREAU ISLAMABAD and another (2004 SCMR 91), Mrs. RIAZ QAYYUM v. THE STATE and another (2004 SCMR 1889 ) Haji GHULAM ALI v. THE STATE through A.G., N.-W .F.P., Peshawar and another (2003 SCMR 597) Mst. FATIMA ISMAIL v. THE STATE (2003 SCMR 733) MUHAMMAD SAEED MEHDI v. THE STATE and 2 other s (2002 SCMR 282), Dr. MUJAHID KAMRAN v. CHAIRMAN NATIONAL ACCOUNT ABILITY BUREAU (NAB) and others (2019 PCr.LJ 34), Engineer Raja QAMAR UL ISLAM v. NATIONAL ACCOUNT ABILITY BUREAU through Chairman and other s (2019 PCr.LJ 582), Syed ATHER HUSSAIN and others v. CHAIRMAN NATIONAL ACCOUNT ABILIT Y BUREAU and another (2019 YLR 788), GHANI-UR-REHMAN v. NATIONAL ACCOUNT ABILITY BUREAU and others (PLD 2011 SC 1144) and THE ST ATE and others v . M. IDRESS GHAURI and others (2008 SCMR 1 118).
(Here we do acknowledge the valuable input given by the Research Cell of the Lahore High Court).
18. For the above stated reasons we have no hesitation to hold that although such powers are exercised exceptionally and not a routine as substituted of section 497, Cr.P.C. but it is now open and very well exposed to the people of this country that whenever the NAB has indulged into denial of the fundamental right of freedom, against Article 15, there is only one silver lining in the sky of relief which can be clearly seen through the prism of a Judge of this Court exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The denial of such right would make us less confident in discharge of our constitutional duties under the Constitutional mandate and oath we have taken under the Constitution to preserve, protect and defend different clauses including Article 199 of Constitution.
19. For what has been stated above, this writ petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.5 million with two sureties in the like amount to the satisfaction of the learned trial court. However , the observations made hereinabove are tentative in nature.