ATHAR MINALLAH, C.J.---Through this consolidated judgment, we will record our reasons for allowing the instant petition along with W.P. No.771/2019 titled 'Abdul Samad v. Director General, National Accountability Bureau and another'. Abdul Samad, son of Ghulam Qadir , (hereinafter referred to as the 'Petitioner No.1' ) and Amjad Mustafa Malik, son of Ghulam Mustafa (hereinafter referred to as the `Petitioner No.2' ), have sought judicial review of executive power whereby it is intended to deprive them of the right to liberty . They have questioned the validity of actions taken by the Chairman of the National Accountability Bureau (hereinafter referred to as the 'Bureau' ), who has ordered their arrest in the exercise of power vested under section 24 read with section 18(e) of the National Accountability Ordinance, 1999 (hereinafter referred to as the 'Ordinance of 1999' ). Pursuant to the said orders, their respective warrants of arrest have been issued. It is not an ordinary case regarding the seeking of anticipatory bail. The constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been invoked, raising questions of paramount public importanc e in the context of fundamental rights guaranteed under the Constitution. The fundamental question raised in these petitions is the scope of power vested in the Chairman of the Bureau to order the arrest of a person under section 24 read with section 18(e) of the Ordinance of 1999. Whether the said power is absolute, unfettered and unquestionable or is to be strictly circumscribed by the purpose expressly described in the relevant provisions. Moreo ver, whether the exercise of this power is subject to the settled principles relating to the exercise of executive authority and discretion.
2. The Petitioners are working in the Pakistan Telecommunication Authority (hereinafter referred to as the 'Authority ). At the relevant time, Petitioner No.1 was appointed as Member (Compliance and Enforcement) i.e. from May 2015 till May 2018. He is currently posted as Director General (Strategy and Development). Petitioner No.2 is working as Director (Wireless) and he reports to the Director General (Lice nsing). According to the written report filed on behalf of the Bureau, a source report was received and pursuant thereto the Chairman of the Bureau, vide letter dated 16.10.2018, had authorized investigation in the exercise of powers conferred under the Ordinance of 1999. It appears that an inquiry was not conducted prior to authorizing the investigation. The investigation pertains to approval granted in favour of Messrs Warid Telecom (hereinafter referred to as the 'Cellular Company') on 04.12.2014 to use 4G/L TE (1800 MHz) on its already acquired spectrum. It is alleged that by allowing the Cellular Company to use 4G, LTE technology on its acquired existing spectrum, the Authority had extended an illegal benefit which had caused a purported loss of US $ 516 million. It is the case of the Bureau that the said approval was granted in violation of the laws which govern the Authority and the policies framed by the Government of Pakistan from time to time. The Bureau as annexed a document at page 22 (A/2) with its written report/comments which refers to and names a known dignitary of a foreign State as owner of the Cellular Company and the latter's relationship with a political figure of Pakistan. In order to properly appreciate tile controversy in hand, it would be beneficial to refer to some other relevant facts in more detail.
3. The Authority has been established under section 3 of the Pakistan Telecommunication (Re-Organization) Act 1996 (hereinafter referred to as the `Act of 1996' ). The functions of the Authority and its powers are described in sections 4 and 5 respectively . The grant and renewal of license for telecommunication system / service and its terms and conditions exclusively vests in the Authority . Likewise, the function to receive an application for the use of radio frequency spectrum and then to refer it to the Frequency Allocation Board (hereinafter referred to as the 'Board ') for assigning spectrum is also within the domain of the Authority . The Authority is empowered to modify licenses, or the terms and conditions thereof, as has been described under sections 21 and 22 of the Act of 1996.
The Authority was, therefore, unambiguously established as a regulator for all matters relating to telecommunication services and telecom munication systems. The Board is constituted in exercise of powers conferred under section 42 of the Act of 1996 by the Federal Government through a notification required to be published in the official gazette. The powers and functions of the Board are described in section 43 i.e. having exclusive authority to allocate and assign portions of radio frequency spectrum to the Government, providers of telecommunication services and telecommunication systems, radio and television broadcasting operations, public and private wireless operators and others. Subsection (4) of section 43 provides that in order to exercise its powers, the Board shall be guided by the applicable recommendations of the International Telecommunication Union or any of its standing committees or organizations, including the International Consultative Committee on Telecommunication, International Consultative Committee on Radio, the International Frequency Registration Board and other similar international organizations. Subsection (5) of section 43 provides that every application for the allocation and assigning of radio frequency spectrum shall, in the first instance, be made to the Authority which shall, after such inquiry as it may deem appropriate, refer the application to the Board within thirty days from receipt thereof. Subsection (6) of section 43 further explicitly provides that on receipt of an application under subsection (5), the Board shall classify the telecommunication services and may allocate or assign specific frequencies to the applicant. The expression 'Federal Government' has been expressly defined in clause (fa) of section 2 of the Act of 1996 as meaning 'the Federal Government in the Ministry of Information Technology and Telecommunication Division, unless for any specific purpose specified otherwise by notification in the official gazette, notification or amendment in the Rules of Business, 1973'. Section 8 empowers the Federal Government to issue policy directives to the Authority as and when it considers necessary on matters relating to telecommunication policy referred to in subsection (2) and that such directives are binding on the Authority . The latter , therefore, has the status of a regulator and all entities governed under the Act of 1996 are bound to follow the policy directives issued by the Federal Government. The Federal Government framed the De-Regulation Policy for the telecommunication sector which was approved by the Federal Cabinet on January 10, 2004 (hereinafter referred to as the 'De- Regulation Policy' ). The Federal Government, in order to give effect to its De-Regulation Policy , framed the Mobile Cellular Policy , dated 28.01.2004 (hereinafter referred to as the 'Cellular Policy'). The objects of the said policy mentioned therein are reproduced as follows.- Mobile Policy Objectives: In addition to the broad Telecom sector objectives, as outlined in the Telecom Deregulation Policy , the following objectives specific to mobile cellular sector are expected to be achieved through this policy: i. Promotion of efficient use of radio spectrum; ii. Increased choice for customers of Cellular mobile services at competitive and affordable price; iii. Private investment in the cellular mobile sector; iv. Recognition of the rights and obligations of mobile cellular operators; v. Fair competition amongst mobile and fixed line operators; vi. An effective and well defined regulatory regime that is. consistent with international best practices.
4. The expression 'scarce resource' is defined in clause (qc) of section 2 of the Act of 1996 as meaning radio frequency spectrum, right of way and numbering. Clause 5.1 of the Cellular Policy expressly provides that the Authority will issue new national "technology neutral" Mobile Cellular Licenses for a tenure of 15 years each. It has been provided that the Government of Pakistan had decided to grant 15 years new "technology neutral" national mobile- cellular licenses. The relevant portion is reproduced as follows.- The standards employed for licensed blocks of Spectrum shall conform to recognized international standards The standardization process has resulted in some technologies being associated with specific spectrum. To date GSM and CDMA are two such technologies. In such circumstances the cellular License should be linked to the associated recognized standard. Where more than one standard could be adopted in any given block of spectrum the licensee shall have the right to choose which standard to employ .
5. Pursuant to the said policy , the allocation of spectrum was offered to interested eligible entities and in this regard a competitive transparent process was conducted through auction. The Cellular Company was one of the successful bidders and consequently it was granted a "technology neutral" license on 26.05.2004 for a period of fifteen years against payment of fee of US $ 291 million.
6. In 2013 the Federal Government, vide letter dated 11.09.2013, constituted an Advisory Committee for auction of the available spectrum. The terms of reference regarding auction of spectrum for next generation mobile services were also publically notified. The policy directives in this regard were also issued by the Federal Government vide letter , dated 07.10.2013. The Authority , through a transparent process, appointed a consultant for conducting the auction proceedings i.e. Messrs Value Partners Management Consultancy (hereinafter referred to as the `Consultant' ). The relevant information regarding the bidding process was made public and was duly displayed on the website of the Authority . Through letter , dated 10.01.2014, addressed to the then Minister of State of the Federal Government, five cellular service providers including the Cellular Company , informed that one Mr. Ricardo Tavares had been appointed as a facilitator on their behalf. In response, the Feder al Government, vide letter dated 17.02.2014, replied that the spectrum auction will be conducted in the most transparent manner and that interested parties may coordinate with the Authority and the Consultant. The bids were received till 14.04.2014 and on conclusion of the auction proceedings, the names of the successful bidders were declared on 17.04.2014. The Cellular Company did not submit its bid nor did it participate in the auction procee dings. The highest bid received for the use and allocation of the spec trum was US $ 591 million. The Bureau, in its written report, has acknowledged that, according to the Cellular Company it had not participated in the auction proceedings because its existing spectrum had sufficient capacity to employ 4G/L TE technology . The Cellular Company filed an application before the Authority for perm ission to use 4G/L TE technology on its existing spectrum and further requested that its license be amended accordingly . It appears from the written report submitted by the Bureau that the Authority , after processing the said application, granted permission on 04.12.2 014 to use 4G/L TE (1800 MHz) technology on the already acquired spec trum. After expiry of the initial term of fifteen years, the license of the Cellular Company was duly renewed in 2019 and on the same terms and conditions, which are alleged to have been the result of corruption and corrupt practices. The renewal was pursuant to the payment of a fee which was determined by the Federal Government through a policy directive issued under the Act of 1996.
7. In a nutshell, it is the case of the Bureau that the permission granted by the Authority to the Cellular Company on 04.12.2014, regarding use of the next generation technology on its existing spectrum and consequently amending the terms and conditions of the license, constitutes the offence of misuse of authority . In the opinion of the Investigating Officer such permission could not have been granted without an auction. In other words the Cellular Company , in order to use the next generation technology , was required to participate in the auction and that additional spectrum ought to have been acquired. It is evident from the written report submitted by the Bureau and the arguments advanced at the Bar that the Investigation Officer has formed an opinion on the basis of his own interpretation of the provisions of the Act of 1996, the Cellular Policy and other directives of the Federal Government and has thus concluded that the permission granted by the Authority was illegal and constituted the offence of misuse of authority , which is punishable under the Ordinance of 1999. There is another interesting and relevant aspect of the case in hand. It is obvious from the record that the Board had taken up the issue regarding interpretation of the legal provisions with the Federal Government vide letter , dated 10-05-2018. In response, the Federal Government, vide letter dated 19-07-2018, had explained the essential features of the Cellular Policy and had highlighted the meaning of the expression 'technology neutral'. The relevant portions of the said letter for adjudication of the controversy before us are reproduced as follows.- "MoIT finds the contents of the above mentioned letter against some of the longest standing settled principles of the GoPs telecom sector policies."
"In light of Cabinet approved Deregulatio n Policy 2003 and Cellular Mobile Policy 2004 "Technology Neutrality" means that any available technology to date can be employed to provide a specified service within the scope of the License of telecom Licenses in the assigned frequency band, which is still applicable as carried forward under the current . Telecommunication Policy 2015 as formulated after more than a year of deliberations and stakeholder consultations including FAB. FAB management, in the referenced letter , has itself admitted the success of stable policy based on international best practices which is evident from the growth of the sector and widespread coverage of affordable service for the users. With this in view such a position by the ED FAB against well settled policy principle of "Technology Neutrality" is questionable and contrary to FAB's earlier stance since 2003/4 and have never been brought by ED FAB to the relevant for a like Auction Advisory Committees setup by the Federal Government for devising policies for the various spectrum Auctions conducted in 2014, 2016 and 2017, of which ED F AB. Detailed analysis of MoIT is placed at Annex III."
"Keeping the above listed institutional mandates in view, MoIT&T is of the opinion that FAB Board is not the right forum for deliberation on the settled core principles of Telecom Policy . However , it would be appropriate that the FAB Board looks into the matter of FAB management raising such objections without even the Boards approval and against the stipulated provisions of the Rules of Business. As per assigned mandates under the Pakistan Telecommunication (Re-Organization) Act,' 1996 and RoB 19736 as mentioned above, this Ministry considers that being a policy matter the issue be dealt at the level of the MoIT&T where by default the consultation would duly include F AB, for better understanding of perspectives"
8. The Bureau, in disregard to the above interpretation of the Federal Government relating to its policy , and for reasons best known to it, requested the Ministry of Defence, Government of Pakistan, vide letter dated 04-09-2018, to appoint an expert to assist the Investigating Officer during the course of investig ations. The Ministry of Defence, vide letter dated 07-09-2018, requested the Board to nominate an expert. It is apparent from the record that the Board was an interested party because it had challenged the authority of the regulator and the Federal Government. Consequently the Board, vide letter dated 17-09-2018, nominated one of its officials, namely , Muhammad Khalid Noor , Director General (SP&M/N&IC) as an expert to assis t the Investigating Officer. The dispute regarding the interpretation of the provisions of the Act of 1996, the Cellular Policy and powers of the Authority and Board appear to have been raised by the latter in his report, copy whereof has been attached with the comments filed by the Bureau. The official of the Board who was nominated as a purported expert supported the contention of the latter as is obvious from his report. According to assertions mentioned in the written report submitted by the Bureau, the Petitioners are one of the accused. The entire report does not disclose or attribute any role to the Petitioners nor is there any allegation that they had, directly or indirectly , made illegal gains or benefited in any manner . There is nothing on record to even remotely suggest the involvement of criminal intent or motive. The written report is self contradictory and the entire case of the Bureau is solely based on the interpretation of the provisions of the Act of 1996, the Cellular Policy and policy directives issued by the Federal Government. When the Investigating Officer was asked whether the petitioners had been cooperating during the investigation proceedings, he unambiguou sly answered in the affirmative. He was asked why detention or arrest of the Petitioners is required when the case was entirely based on the examination of official documents and, more so, on the interpretation of statutory provisions, notified policies of the Federal Government and other documents which are already in his possession. He was unable to give any plausible reason for depriving the Petitioners of their constitutional rights, except expressing an apprehension that the latter could either abscond or tamper with the documents.
9. The learned counsel for the Petitioners have been heard at length. It is their case that the Investigating Officer and the Chairman of the Bureau are exerc ising the power to order the arrest of the Petitioners arbitrarily . They have stressed that the powers vested in the Chairman of the Bureau to order the arrest of the Petitioners is neither unbridled nor unfettered and cannot be used to achieve any purpose other than the object for which the legislature has empowered them in this regard. They have strenuously argued that the dispute is between the Board and the Authority and no offence has been committed. It is their case that the cellular policy directives issued by the Federal Government from time to time are being. grossly misinterpreted and that there is not an iota of incriminating material collected during the investigation which would even remotely indicate mens rea on the part of the Petitioners so as to justify their arrest . The arrest of the Petitioners in the facts and circumstances of this case would be in violation of their constitutionally guaranteed rights and the principles relating to fair trial. They have alleged that the Petitioners are being pressurized by the Investigating Officer to enter into a plea bargain or to persuade the Cellular Company to do so.
10. The learned Additional Deputy Prose cutor General has appeared along with the Investigating Officer of the Bureau. They were not able to give a reasonable explanation for restricting the Petitioners' right to liberty by arresting them. They have argued on the basis of their own interpretation of the Cellular Policy and provisions of the Act of 1996 that the permission granted in favour of the Cellular Company amounted to misuse of authority .
They have referred to various provisions of the Cellular Policy and other official documents in support of the contention that permission to use an available technology on the existing spectrum could not have been granted and that it was mandatory for the Cellular Company to have participated in the auction held by the Authority or seek consent from the Board. The documents which they have referred to relate to the auction of spectrum, having no nexus with granting permission to a licensee to employ an available technology on its already acquired spectrum.
The Investigating Officer explicitly stated that he did not accept the interpretation of the expression 'Technology Neutral' described in the letter , dated 19-07-2018, issued by the Ministry and defined in the Act of 1996 as meaning the Federal Government.
11. The learned counsel for the Petitioners and the learned Additional Deputy Prosecutor General of the Bureau have been heard and the record perused with their able assistance.
12. The Petitioners have invoked the extraordinary discretionary jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the `Constitution') seeking judicial review of the power exercised by the Chairman of the Bureau under clause (a) of section 24 read with section 18(e) of the Ordinance of 1999 whereby the latter has ordered their arrest. It is the case of the Petitioners that the power vested under section 24 read with section 18(e) of the Ordinance of 1999 is not absolute, unbridled or unfettered nor can it be exercised arbitrarily and unnecessarily for achieving any purpose other than the one explicitly mentioned ibid. It is their case that unnecessary and arbitrary exercise of power to order their arrest, if executed, would gravely violate their fundamental rights guaranteed by the Constitution, besid es causing irreversible damage to their repute. The questions which have arisen for our consideration are (i) whet her the power to order arrest of an accused under section 24 read with section 18(e) of the Ordinance of 1999 is unfettered and absolute (ii) if the answer is in the negative, then whether the exercise of this power is subject to the purpose expressly mentioned by the legislature and the constitutionally guaranteed rights (iii) whether the principle of presumption of innocence is attracted in the case of an accused who has not been convicted under the Ordinance of 1999 (iv) in case the answer to the last question is in the affirmative, then how protection of the fundame ntal rights guaranteed under the Constitution could simultaneously be balanced while achieving the public interest and object for which the Ordinance of 1999 has been enacted (v) whether the principles of 'proportionality' and 'unreasonableness' are relevant in this context and, lastly , the principles and law enunciated by the superior courts regarding deprivation of liberty . In order to answer these questions, which are definitely of paramount public importance, because they involve the likelihood of restricting the constitutionally guaranteed fundamental rights, it would be beneficial to survey the provisions of the Ordinance of 1999, the principles enunciated by the superior courts regarding power to arrest, the constitutional rights which are affected and the principles adopted by constitutional courts for the judicial review of executive power .
The Ordinance of 1999.
13. The Ordinance of 1999 was enacted with the object and purpose of providing effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misappropriation of property , kickbacks, commissions and for matters connected and ancillary or incidental thereto.
Section 3 gives an overriding effect to the provisions of the Ordinance of 1999 and provides that, notwithstanding anything contained in any other law, the provisions ibid shall have effect. Section 5 defines various expressions.
Section 9 describes offences while section 10 prescribes the punishment for corruption and corrupt practices. The maximum punishment prescribed in clause (a) of section 10 is rigorous imprisonment for a term which may extend to fourteen years with a fine, while the assets and pecuniary resources found to be disproportionate to the known sources of income, acquired from funds obtained through corruption and corrupt practices, are liable to be forfeited.
Moreover , the offences specified in the Schedule to the Ordinance of 1999 are punishable in the manner specified therein. Section 11 provides that the fine imposed upon conviction shall not be less than the gain derived by the accused or any relative or associate, due to commission of the offence. The Chairman of the Bureau has been empowered to freeze the property of an accused, or part thereof, if it appears to the latter that there are reasonable grounds for believing that the accused has committed an offence. The tender of pardon is another extraordinary power of the Chairman under section 26. Section 15 provides for disqualification to contest an election or to hold public office upon conviction of an accused. The disqualification to contest elections is for a period of ten years from the date the convicted person has been released after serving the sentence. Clauses (c), (d), (e) and (f) of section 18 describe the powers relating to the inquiry or investigation of an offence. A plain reading of section 18 as a whole shows that the legislature, in its wisdom, has divided the proceedings into various stages i.e. (i) initiation of proceedings and, in this context, formation of an opinion by the Chairman, or an officer authorized by him, has been made as a pre-condition (ii) after the opinion has been formed, the competent person refers the matter for inquiry or investigation, (iii) the powers in relation to conducting an inquiry and investigation are expansive, (iv) after the conclusion of the inquiry and investigation, the material and evidence collected is required to be placed before the Chairman, or such officer authorized in this behalf and the latter decides wheth er or not it would be proper and just to proceed further and, lastly , (v) the test for proceeding further has been expressly provided i.e. subjecting the filing of a Reference to sufficiency of mate rial, which would justify doing so (vi) the trial is exclusively regulated and conducted special courts i.e. Accountability Courts.
The legislature has expressly used the expression 'expeditiously' in relation to the completion of an inquiry or investigation. Section 18(e) unambiguously confines the exercise of power to arrest an accused "for the purposes of an inquiry or investigation" and that the inquiry or investigation are mandated to be completed as "expeditiously as may be practical and feasible". Likewise statutory safeguards have been provided for the purposes of filing a Reference. Section 18(b) empowers the Chairman, or an officer authorized in this behalf, to institute criminal proceedings for a frivolous complaint, if it has been filed with the intent to 'malign or defame' any person. This is an offence punishable with imprisonment, which could extend to one year. Clause (a) of section 24 empowers the Chairman of the Bureau to direct the arrest of an accused at 'any stage of the inquiry or investigation'. Sections 24 and 18(e) are not exclusive of each other and thus have to be read together in the context of the power to arrest an accused. Section 24 further provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (hereinafter referred to as the Cr.P.C.') if a person is arrested, then, as soon as possible, it is. the statutory duty of the Bureau to inform him of the grounds and substance on the basis of which he has been arrested and to produce him before the. Court within a period of twenty four hours of arrest, exclud ing the time of journey from the place of arrest to the Court. Moreover , it is provided in clear language that a person who has been arrested shall be liable to be detained in the custody of the Bureau for the 'purpose of inquiry and investigation' fora period not exceeding ninety days. The legislature has further made it mandatory for the Court to ensure that a person is remanded to custody for a period not exceeding 15 days at a time, and every subsequent remand is subject to the said restriction and recording of reasons. Sections 31 and 31-A have obviously been inserted with the intent that the proceedings and trial are concluded rapidly , efficiently and with speed. There is yet another crucial aspect and that is the power vested in the Bureau under section 25 of the Ordinance of 1999 to refer a case to the Court for approval of plea bargain. This unique feature is not provided in other penal statutes. The unambiguous language of section 25(b) makes the validity of an of fer made by an accused subject to being 'voluntary'. It is