Through this petition filed in terms of Article 199 of the constitution of Islamic Republic of Pakistan, the petitioner seeks post arrest bail in Inquiry No. 1989 -2019/DO(L)-NAB/HQ Headquarter . The petitioner was served upon with the following grounds of arrest:
(i) The accused person, by misuse of authority , granted illegally L-2 Liquor License to Unicorn Prestige Hotel for which the hotel was not otherwise eligible at that time;
(ii) Whereas Unicorn Hotel did not have 4/5 star rating, which is necessary/primary condition for obtaining the L-2 Liquor License, the. L-2 License was granted to M/S Unicorn Prestige Ltd without first obtaining 4/5 star rating certificate from the Department of Tourist Services, Punjab;
(iii) The accused did not follow other necessary procedures before of grant of license. However , the accused, being Director General, granted L-2 Liquor License to Unicorn Prestige Ltd, Lahore without fulfilling all necessary legal/codal formalities, as required under the law/policy;
(iv) The accused also managed to obtain NOCs from different departments through the ETO who issued letters for having NOCs regarding giving L-2 Liquor License to M/S Unicorn prestige Ltd to facilitate the company;
(v) The accused maneuvered and engineered the whole process to grant L-2 Liquor License to M/S Unicorn prestige Ltd without its eligibility at that time;
2. Learned counsel for the petitioner contended that no direct or circumstantial evidence was brought on record to suggest that the petitioner exercised his powers for some consideration or undue benefit for himself or for any other person and as such, case would not fulfill test of Section 9(a)(vi) of National Accountability Ordinance, 1999 to justify criminal prosecution; that in a case set out under Section 9(a)(vi) of National Accountability Ordinance, 1999, the prosecution had to make out a reasonable case; that 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) mentioned above. Adds that charge of misuse of authority can only be attracted where there is wrong and improper exercise of authority for a purpose not intended by the law or where a person in authority acted in disregard of the law with the conscious knowledge that his act was without the authority of law and where act was done with intent to obtain or give some advantage inconsistent with the law; that element of mens-rea and intention to commit an offence under Section 9(a)(vi) of National Accountability Ordinance, 1999 were not traceable in this case; that the petitioner performed his duty under the law and even the Chief Secretary recorded a note in summary prepared for the Chief Minister that further necessary action may be taken. It was submitted that licence L-2 granted by the petitioner was withdrawn and was ultimately declared as valid by this Court vide judgment dated 10.10.2019 passed in Writ Petition No. 1949-2019; that no recovery was effecte d from the petitioner , who is behind the bars since arrest and his long incarceration would not serve any purpose to the prosecution; that no body can be detained in jail for indefinite period by way of advance punishment; that there was no likelihood of tampering with evidence by the petitioner and absconsion as he was a government servant. Concluding his arguments, learned counsel for the petitioner submitted that culpability of the petitioner , in the circumstances, needs serious consideration and he was entitled to bail.
3. Learned Special Prosecutor for NAB opposed this petition with vehemence and submitted that the petitioner granted L-2 Liquor licence in the capacity of DG Excise violating the law, mandatory procedure and policy and the grant of such licence in form L-2 to M/S Unicorn Prestige Ltd will result in boosting of its income; that grant of L-2 licence was restricted only to 4/5 star hotels and that the said hotel was not qualified for the said licence; that there was sufficient material available on the record suggesting misuse of authority which attracts Section 9(a)(vi) of National Accountability Ordinance, 1999.
4. Arguments heard. Record perused.
5. A review of the record demonstrates that the application for the approval/grant of liquor licence was filed by M/S Unicorn Prestige Ltd. Hotel near Allama Iqbal International Airport, Lahore on 03.7.2018. It was mentioned in the application that the requirement of Five Star Hotel have to cater the foreign/domestic tourists, foreign and domestic investors/businessmen, foreign and nation al Displomatic delegations etc. and thus, licences were granted to similar hotels in Pakistan. On 11.7.2020, Excise and Taxation Officer addressed the Director General Exercise and Taxation (Region-D), Lahore regarding the said application and on 13.7.2018, Director General Excise and Taxation (Region-D), Lahore directed to Excise and Taxation Officer Excise Branch, Lahore to look into the request of the applicant and submit comments on the issue involved. Consequently , on 23.7.2018, the Excise and Taxation Officer (Excise), Lahore recorded his observations with the proposal that the same may be communicated to the applicant i.e. the hotel. Thereafter , no objection certificate for liquor licence regarding the above said subjects were issued by District Health Officer (preventive Services) vide memo. dated 03.1.2019. The Deputy Commissioner Lahore vide memo. dated 03.1.2019, Civil Defence Officer, Lahore dated 02.1.201 9, Deputy Inspector General of Police (Operations), Lahore dated 04.1.2019, the Additional Cantonment Executive Officer Lahore Cantt dated 31.12.2018 and Senior Joint Director Commercial/ Chief Operating Officer Airport Manager Civil Aviation Authority dated 01.1.2019. Through a proclamation objections were also invited at some stage. Ultimately , Excise and Taxation Officer (Exercise-II), Lahore recommended for the grant of licence in form L-2 in favour of hotel vide memo. dated 18.12.2018. The record further divulged that Director General Excise and Taxation, (Region-D), Lahore vide memo. dated 18.12.2018 recommended the petitioner/Director General Excise and Taxation Punjab for the grant of licence and endorsed detailed and self explanatory report of the Excis e and Taxation Officer subject to the completion of the hotel premises and fulfillment of all codal formalities under the law/rules. Then the request of hotel was looked into by the Excise and Taxation Committee which examined the case in detail in the light of relevant law/rules and after deliberation, unanimously agreed the request put forth by the applicant/hotel and recommended for grant of L-2 licence in its favour vide memo. 19.12.2018 under the convener-ship of Additional Director General, Excise and Taxation, Punjab subject to fulfillment of formalities, The mehio. dated 02.1.2019 of Excise and Taxation Officer (Excise-II), Lahore revealed that the legal/codal formal ities required for grant of licence in form L-2 under the law were fulfilled, thus, the grant of said licence was recommended. On 03.1.2019, Director Excise and Taxation (Region-D), Lahore forwarded the said case for the grant of licence in form L-2 in favour of M/S Unicorn Prestige Ltd. The available record further suggested that a summary was prepared by the ET & NC Department for Chief Minister Punjab wherein it was mentioned that under Rule 26 of Punjab Prohibition (Enforcement of Hadd) Rules, 1979, Excise Commissioner/Director General Excise and Taxation Punjab was empowered for grant of such licence but the government of the Punjab approved a policy on 17.2.2009 by virtue of which such licence could be granted but only to 4/5 Star Hotels which meet other requisite conditions laid down under the law/rules. However , said policy was never notified as conceded by the learned Special Prosecutor as well as mentioned in the judgment dated 10.10.2019 (mentioned above). In para-6 of the said summary , it was mentioned that in consideration of the recommendations of the Director Excise and Taxation (Region-D), Lahore, the Director General Excise &, Taxation opined that prima facie, the 'applicant had a good case for grant of licence in form L-2 subject to fulfillment of conditions laid down under the law/rules. The authority after perusing the summary observed that the instant matte r be dealt with at an appropriate forum as per law/policy in vogue and further necessary action may also be taken accordingly as per law, depicting by note of the Chief Secretary Punjab.
Finally , the required Licence in form L-2 was granted in favour of the applicant on 09.1.2019 under registered District No. 262/2018-2019. The order dated 28.6.2019 revealed that the Secretary Excise and Taxation and Narcotic Control Department, after perusing the reply of the Director General Excise and Taxation observed that the material inadequacies earlier communicated and conveyed to the Director Gene ral Excise and Taxation had not been addressed, thus, the licence granted on 19.1.2020 was ordered to be withdrawn forthwith in terms of Section 41(1)(b) of the Punjab Excise Act, 1914 with the direction to the concerned official and the applicant to fulfill all the procedural requirement. The applicant i.e. M/S Unicorn Prestige Ltd assailed the said order by way of Writ Petition No. A 41949-2019 and this Court vide judgment dated 10.10.2019 set aside the order dated 28.6.2019 with the following observations: "In view of the above, this petition is allowed and the impugned order is set aside. Consequently , the L-II licence granted to Unicorn will be restored and deemed to be valid for the period for which it was granted"
6. The Court was apprised that order dated 10.10.2019 passed in Writ Petition No. 41949-2019 is neither suspended nor set aside by any competent forum.
7. After hearing the learned counsel for the parties and keeping in view the above discussion, the use of authority by the petitioner as Director General Excise and Taxation is not disputed and the moot question is if use of such authority by the petitioner amount to misuse of authority is not within the purview of Section 9(a)(vi) of National Accountability Ordinance, 1999. Another issue germane to the above mentioned main issue as to whether any misuse of authority by the petitioner in the matter could be said to have been committed with criminal intent so as to make his action culpable or note. No evidence whatsoever is available on the file to suggest any misuse of authority by the petitioner as different memos available on record indicate that codal formalities were fulfilled prior to the grant of licence to hotel on 09.1.2019.
8. Learned Prosecutor for NAB could not point out any material from the record showing any mens-rea or if the petitioner misused his authority for some ill-gotten gain in the context of misuse of authority . It is also settled by now that 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 merely attracted where exercise of authority for a purpose not intended by the law, where a person in authority acts in violation of law with the conscious knowle dge that his act was without the authority of law .
9. Reverting to the merits of the case, we find some very clear and un-mistakenab le clues to a resolution of both, the above mentioned issues lie in a few pages including the recommendations of the ETO concerned, endorsement by the Director Excise and Taxation (Region-D), Lahore, summary prepared for Chief Minister Punjab and grant of licence in form L-2 in favour of M/s Unicorn Prestige Ltd. dated 09.1.2019, though it was withdrawn vide order dated 28.6.2019 but was set aside by the Court vide order dated 10.10.2019 passed in Writ Petition No. 41949-2019. At the cost of repetition, we may mention that no document, whatsoever was available on the record or referred to by the Special prosecutor for NAB suggesting guilty intent of the petitioner , thus, the culpability of the petitioner needs serious consideration, thus, the petitioner is entitled to the relief prayed for .
10. In view of the above, this petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with two sureties in the like amount to the satisfaction of the learned trial Court/Duty Judge.