MUHAMMAD NAEEM ANW AR, J. Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks the following prayers: - i. Declare that impugned VR and extortion of money from petitioner secured by respondents through misrepresentation, fraud, coercion and misuse of their power is illegal, unlawful, arbitrary , capricious and without any lawful jurisdiction as such is liable to be set aside. ii. Direct the respondent to return the amount of Rs. 6.5 Million along with interest taken by them under duress. By unlawful mean and deception to the petitioner , with immediate ef fect. iii. Restrain the respondents from making the information regarding the case of petitioner public and that the proceeding of the instant petition may please be held in camera. iv. Grant interim relief by suspending the VR and holding that the factum of VR should not be used to the detriment of the petitioner , till the final disposal of instant writ petition. v. Grant any other relief that this Hon'ble court deems fit and appropriate in the facts and circumstances of the case.
2. Momentous facts leading to the institution of this petition are that the petition er has been serving as Police Officer and presently posted as Director Federal Investigation Agency (BPS-20) at Islamabad, however , since his appointment he remained on different posts in Police Department of Pakistan, similarly , in connection with the affairs of his service, he was also deputed and posted as Community Welfare Attach at Jeddah, Saudi Arabia; that the petitioner had visited the respondents' office on 3rd of February ,2014, for which he received a telephonic call a day ago on March 1st, 2014, where he was apprised to have been incriminated by one of his casual friend, namely , Raza Ali Khan accused in the Crime weapon scandal, allegedly to be the beneficiary in police weapon scam for embezzlement of 6.5 Million, he was also threatened with arrest, defamation, losing of his senior management training and the promotion in BPS-20 and was given three days' time, he requeste d the respondents to go through from the statement of Raza Ali Khan who allegedly made him accused in the case but they refused. He tried his level best to get him exonerate from the allegations leveled against him and to clear his position but due to harassment, undue influence, pressure of his arrest by the respondents for arraying him as an accused in the reference, thus, in such unavoidable circumstances, when he was even unable to get legal assistance, was left with no option but to avail the option of voluntary return (VR) with the assurance of respondents that the same shall be kept secret/confidential. Therefore, he requested the respondents to at least determine his liability so that he could arrange the same but instead of fixing the definite liability he was told that whatever he can deposit shall be considered as against the voluntary return with an addition that his offer has already been accepted and was assured that in case no evidence comes to connect him with the alleged weapon scandal, his amount will be returned to him. With the aforesaid assurance, he deposited US Dollars 65000/-, which was his saving during the entire service. Thereafter , the reference was filed and evidence was recorded but neither in reference nor in evidence any prosecution witness has ever named him so much so the Raza Ali Khan and another namely Arshad Majeed has not deposed even a single word against him. It was also alleged that during proceedings Raza Ali Khan also pleaded guilty and the total liability fixed by the respondents was paid by him including 6.5 Million which was illegally screwed from the petitioner . Therefore, the petitioner demanded his amount from the respondents with the plea that total liability fixed by them for weapon scandal was already paid by accused Raza Ali Khan, as such, he is entitled to get his money back from the respondents with an addition of their commitment. It was also made a ground that respondents even did not honour their commitment for keeping the matter secret but they disclosed it to the Establishment Department, hence, this petition.
3. When put on notice, the respondents have furnished their para-wise comments on legal and factual grounds and opposed issuance of the desired writ.
4. We have heard the learned counsel for the parties and have perused the record with their valuable assistance.
5. In the backdrop of aforementioned facts, the petitioner prayed for the relief on the following points. i. That he was allegedly charged by the accused Raza Ali Khan, however , neither any such statement was shown to him nor Raza Ali Khan named him before the Court. ii. That he denied from all the allegations, when informed by the respondents. iii. Neither he was named in reference nor any of prosecution witness disclosed his name for the alleged embezzlement. iv. No role in procurement was attributed to him. v. Voluntary return was the result of coercion, blackmailing, undue influence, misrepresentation, pressure, fraud deception, and harassment. vi. He was exonerated from the charges leveled against him in disciplinary proceedings.
6. Arguments of the respondents were as under: - i. Petitioner executed an affidavit before filing of reference and his voluntary return (VR) was approved, as such, to the extent of petitioner , on deposit of embezzled amount there was no need to array him in reference. ii. Procedure as provided in section 25A of NAB Ordinance 1999, was complied with. iii. The petitioner admitted his involvement in embezzlement and to that effect he has submitted his application on 21st February 2014 and later on submitted affidavit. Neither the facts were misrepresented nor he was influenced undue, similarly for his VR neither he was forced nor deceived, that is why since 21st February till filing of petition he has never made any complainant against respondents.
7. For determining the fate of voluntary return, the application so submitted by the petitioner is of worth perusal where he has disclosed the facts such as "after being satisfied that a person had misused my name and taken money as graft in my name from the police contractor in 2010-1 1, I entered into talks with the elders of the family of beneficiary and have achieved break through. The beneficiary has agreed to pay back Rs. 6.5 Million obtained through fraud. Now to avoid litigation and bad name to my reputation, and considering it my religious, national and moral obligation. I have recovered PKR 6.5 Million from the said person through jirga and I am returning the amount voluntarily . I will later deal with unscrupulous/fraudulent element under the norms of the area."
The application was submitted by the petitioner on 21-02-2014.
8. Thereafter , he submitted an af fidavit by mentioning that "I declare that an amount of Rs. 6,5 Million was gained acquired fraudulently by cheating in my name and now on recovery from the beneficiary , I am returning the said amount voluntarily with my free will and to unburden my conscious" it was also added that "I shall not contest it through any court or arbitration by me or my legal heirs."
Underline for emphasis.
9. Since the application was not part of the petition, therefore, when the same was tendered during the course of arguments, learned counsel for petitioner and petitioner himself was confronted with the same, upon which, the petitioner , present in the court, frankly conceded that he had submitted the application and the affidavit. May be, the application or the affidavit both of the same date i-e 21-02-2014, are the result of pressure or harassment but the debatable aspect is that since 21st February 2014 till 2nd May 2016, the said alleged fact was never brought before an appropriate forum and that too when the petitioner is not only an educated person but a police officer, who was supposed to be much vigilant and conscious than the one of ordinary prudence. Such conduct of the petitioner created much doubt in his stance taken in petition.
10. Even otherwise, the admission of the petitioner pertaining to the application and the affidavit, no doubt, the same may not be out of context of contents, created a barrier for him under the principle of estoppel, which has been defined in Osborn' s Legal Dictionary as "the doctrine of law which precludes a person from denying the truth of statement formerly made by him", and under the provision of Qanoon-e-Sh ahadat Order 1984, under Article 1 14 which reads as: - "114. Estoppel:- When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
11. On the principle of estoppel, the Hon'ble Supreme Court of Pakistan in case Dr. Muhammad Javed Shafi vs Sayed Rashid Arshad and others ( PLD 2015 SC 212 ) has held: - "Where a person was aggrieved of a fact, he had a right, rather a duty to object thereto to safeguard his right, and if such a person did not object, he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage---Person was estopped by his own conduct, if he though was aware of certain fact(s), which was likely to cause harm to his rights and adversel y affect him and was prejudicial against him, avowedly or through some conspicuous act or by omission, inten tionally permitted and allowed another person to believe a thing to be true and act on such belief without taking any steps to controvert or nullify such adverse fact and instead he slept over the matter . Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person."
12. At the same time questions of misrepr esentation, coercion and fraud requires complete trial which could not be resolved in writ jurisdiction. In this regard, we are supported by the decision in a case titled Fida Hussain Vs Mst Saiqa ( 2011 SCMR 1990 ), wherein it was observed by their lordships as under: - "High Court was not to resolve disputed questions of fact in exercise of constitutional jurisdiction under Article 199 of the Constitution."
Likewise, in another case titled Government of Punjab Vs Ghulam Nabi (PLD 2001 SC 415) it was held by the Hon'ble Supreme Court of Pakistan that: - "High Court could not go into the disputed question of facts in exercise of Constitutional jurisdiction"
13. Thus, for the reasons discussed above, this petition is dismissed being without substance.