Lal Jan Khattak, J.--Petitioner Muhammad Safdar , through this petition under Article 199 of the Constitution of Islamic Republic. of Pakistan 1973, has applied to this Court for granting him bail before arrest in the inquiry/investigation initiated against him under the National Accountability Ordinance, 1999 wherein his warrant of arrest has been issued by the respondents.
2. Origin of the case lies in the call up notice dated 15.10.2018 issued by the respondents to the petitioner under Section 19 of the NAB Ordinance whereby he was called upon to appear in person on 22.10.2018 before the Combined Inquiry Team of NAB in connection with the inquiry proceedings initiated against him regarding his corruption and corrupt practices by accumulating assets beyond his known legal sources of income. It is the petitioner's case that on receiving the call up notice he duly replied to it but throu gh another call up notice dated 23.10.2018, he was directed to appear before the Investigation Team on 30.10.20 18 on which date he did appear before the Team and got recorded his statement where he was also handed over an Assets Declaration Proforma by the respondents which he returned after compliance along with answers to the questionnaire. In the petition, it has been averred by the petitioner that the respondents with intention to torment, torture and persecute him kept on sending him call up notices in one inquiry or another on which he approached this Court through W.P. No. 201- P/2019 which was disposed of on 10.01.2019 by directing the NAB Authorities to not arrest him in pursuance of the impugned call up notice(s) till conclusion of the pending inquiry or investigation and in case his arrest is required to the NAB Authorities then a proper warrant of arrest shall be issued and sufficient time, at least, of ten (10) days be provided to the petitioner enabling him to seek his remedy before the proper forum.
3. Petitioner further has averred in his petition that thereafter he furnished detailed reply to the respondents on 13.01.2019 and once again was issued a call up notice on 09.02.2020 accompanied by a questionnaire which he also answered followed by another call up notice issued to him on 17.09.2020 which too he replied along with the questionnaire and that when on 08.10.2020, he visited the NAB Office at Peshawar in response to a call up notice there he was handed over a notice regarding issuance of his warrant of arrest. Being aggrieved of the issuance of his warrant of arrest petitioner has filed the instant petition for seeking pre-arrest bail.
4. This Court on 15.10.2020, while granting ad-interim pre-arrest bail to the petitioner , had directed the respondents to file their parawise comments which have been so furnished wherein grant of the desired relief has strenuously been opposed.
5. Arguments heard and record available gone through.
6. In their parawise comments, the respondents have come up with a plea that a complaint regarding the petitioner's accumulation of assets beyond his known legal sources of income was processed for verification and an inquiry was authorized in the matter as a result of which the following assets belonging to him and his dependants were unearthed: i 68K-18M land in Mouza Debgran, Mansehra in the name of accused/ petitioner . ii. 73K-06M land in Mouza Pooraj, Mansehra in the name of accused/ petitioner . iii. 16K-00M land in Mouza Mansehra-I, Mansehra in the name of accused/petitioner . iv. 06K-07M land in Mouza Mansehra-I, Mansehra in the name of accused's son. v. Plot No. G-24 Mansehra Development Authority , Mansehra in the name of accused/petitioner . vi. 1726K-14M land at Mouza Drighri, Tehsil Jampur , Distt: Rajanpur in the name of accused-petitioner . vii. 1200K land at Mouza Kot-Rum, Tehsil and Distt:Rajanpur in the name of accused-petitioner . viii. 04K-16 M land at Mouza Mal, Lahore in the name of accused/petitioner . ix. 10K-OM ancestral Land in Mouza Khewari, Mansehra in the name of accused/petitioner . x. Construction of a Flour Mill in 1998-99 at land purchased by the accused/petitioner in Mouza Debgran, Mansehra. xi. A lavishly under construction house in Ghazi Kot Town Ship Mansehra. xii. U-construction Guest House/ Hujra adjacent to the above said house in Mouza Mansehra-I."
The respondents' stance qua the alleged accumulation of assets beyond known legal sources of the petitioner's income may be carrying some weight but with his rejoinder to the respondents' parawise comments the petitioner has submitted a voluminous record justifying therein the assets owned and possessed by him and his respondents as well. For the purpose of convenience, learned counsel for the petitioner at the time of arguments, produced before the Court a chart explaining in detail the legitimacy of the various properties highlighted by the respondents in para-1 (I-XII) of their comments which chart is reproduced herein below: S. No.Area Purchaser/Donee/Successor Amount Page.No. i 68 Kanal 17 Marla 53 Kanal 10 Marla- Purchased by father . 15 Kanal 07 Marla- Purchased by Mr . Safdar PKR 10, 05,500/- PKR 50, 000/-Page 13-19 of the rejoinder ii 73 Kanal 07 Marla Purchase by Mr . Safdar Rs.01 Million outstanding PKR 26,50,000/-Pg-20-21 of the rejoinder iii 16 Kanal 10 Kanal-Purchased by father and Later on gifted to Safdar . 06 Kanal-Purchased by Mr .
Safdar (As a Result of Pre-emptor suit on Court Order) PKR 400,000/- PKR 18,00,000/-Pg.23-24 of the rejoinder Pg.35 iv 06 Kanal 07 Marla Purchased by father in the name of Grandsons PKR 79,40,000/-Pg. 36-37 of the rejoinder v Plot No. G- 24 Purchased by Safdar PKR 7,86,000/- Pg. 76-77 of the rejoinder vi 1722 Kanal 03 Marla Both Properties Purchased by Safdar PKR 861, 075/- Pg. 85-170 of the rejoinder vii 1200 Kanal (Barren Land) PKR 6,00,000/- ix 04 Kanal 16 Marla Inherited Property ............ Pg. 171-172 of the rejoinder x 10 Kanal Gifted to Safdar by Father Safdar's Grandfather gifted 32K 06 M to Safdar's father , who gifted 10K each to 3 sons............ Pg-173-174 of the rejoinder xi Flour Mill Mill is constructed on 30 Kanal 12 Marla land purchased by father (included in No. 1 above) PKR 600,00/- (Cost of Land)Pg-175 of the Rejoinder xii Under Construction House Construction undertaken by Safdar PKR 60,00,000/-....................... xiii Under Construction House Construction undertaken by Safdar PKR 35,00,000/-......................
Salary as MNA (2008-18) = Rs. 2,12,36,772/- = Rs. 25,48,028/- Total = Rs.2,37,84,800/-Total Rs. 2,61,92,500/- Father: Rs.99,45,500/- Safdar: Rs.1,62,47,000/-
7. Regarding the cited assets both the sides have presented different versions. Respondents' point of view is that the petitioner has accumulated the assets through corruption and corrupt practices and that same are beyond his known legal sources of income while the petitioner's reply to the allegation is that all the assets in his name have come to big through legal means.
8. It is a well settled legal proposition that while exercising a writ jurisdiction pertaining to grant or otherwise of bail before arrest a High Court cannot hold whether a particular asset has come to the holder of a public office or to any other person through his known legal sources of income or otherwise and such is obviously done for the reason that let it may not prejudice the case of either of the two parties either before the Investigating Team or the Accountability Court, as the case may be. What the High Court, while exercising its constitutional jurisdiction in a case like the instant one, has to do is to see whether or not there is any mala fide on the part of the NAB Authorities to arrest the accused and whether or not a prima facie case for grant of the extra ordinary concession of admitting him to bail before arrest has been made out?. If the constitutional Court, in the light of record, reaches to a conclusion that mala fide reflects from the intended NAB's move to arrest an accused and the latter also succeeds in setting up a prima facie case in his favour then in such like situation, it is the primary duty and legal obligation of the Court to grant relief to the citizen so that he could be protected from the unjust and arbitrary arrest and if despite the element of mala fide on the part of NAB to nab the accused the latter is not admitted to bail before arrest and allowed to be grilled by the former's Investigators for a maximum period of 90 days by putting him behind the bars then the centuries old jurisprudence developed by the Courts of law qua the presumption of innocence of an accused unless proven guilty would die down and would be meaningless.
9. On the touchstone of the above, if we look at the petitioner's case, it would appear that the element of mala fide on the part of the respondents for his arrest is very much there. Apart from alleging mala fide in his Writ Petition for his unjust intended arrest at the hands of the respondents, petitioner in CM No. 849-P/2021, has also alleged his political victimization through the NAB Officials for his being son-in-law of the former Prime Minister of Pakistan who is a known leading opposer and challenger not only of the present Government but of the NAB as well.
Besides, the numerous call up notices issued by NAB at Peshawar to the petitioner , a call up notice has also been issued to the petitioner from the NAB office at Lahore for his appearance in respe ct of assets belonging to him for their being disproportionate to his known legal source of income which issue is the subject matter of writ petition Bearing No. 15768 of 2021 which simultaneous proceedings under the NAB Ordinance too smack mala fide on the part, of the respondents towards the petitioner . One another example of mala fide of the respondents towards the petitioner is evident from the fact that in the year 2018 many call up notices were issued to him, per Para No. 11 of their parawise comments, whereas in the following full year of 2019 not a single call up notice was issued by the respondents to him. Learned counsel for the petitioner , in this respect stated at the bar that after his release on bail from prison in the month of September , 2018 in Avenfields Apartment Reference, the petitioner , a critic of the present government, did not take a jibe at the government's policies for the full year and as such he was spared but the moment he started criticizing the government, NAB machinery was mobilized by the government of the time against him which issued to him many call up notices and ultimately his warrant of arrest.
10. Ibid point of learned counsel for the petitioner was repelled by the learned ADPG by stating at the bar that the NAB, as an independent and autonomous body , always acts on its own and is pursuing the case against the petitioner purely on merit and there is no element of any mala fide on the part of the respondents or that they get any direction from some other quarter while acting under the Ordinance. There is no cavil that NAB, as per law, is quite an independent body and is regulated by its own procedure etc to eradicate corruption and corrupt practices from the society and holds accountable all those persons accused of such practices and matter ancillary thereto, however , the Hon'ble Supreme Court of Pakistan in its judgment reported in PLD 2020 Supreme Court 456 has held as under: "67. The NAO was promulgated by the Military regime of General Pervaiz Musharaf on 16.11.1999, repealing the previously enacted Ehtesab Act, 1997. The NAB Ordinance from its very inception became increasingly controversial, its image has come under cloud and there is a wide spread perceptio n of it being employed as a tool for oppression and victimization of political opponents by those in power . It is frequently alleged that the Bureau is being flagrantly used for political engineering. Discriminatory approach of NAB also is affecting its image and has shaken the faith of the people in its credibility and impartiality . The bureau seems reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandates investigatio ns to be concluded expeditiously and trial to be concluded within 30 days.
Nonetheless, investigation is often not concluded for months and cases remain pending for years. It is because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases is abysmally low.
The above is certainly not serving the national interest; rather causing irretrievable harm to the country , nation and society in multiple ways. It was in view of the above distressful situation that the former Chief Justice Asif Saeed Khan Khosa, speaking for this Court during the opening ceremony of the Judicial Year 2019-20 observed as follows:-- "We as a relevant Organ of the State also feel that the growing perception that the process of accountability being pursued in the country at present is lopsided and is a part of political engineering is a dangerous perception and some remedial steps need to be taken urgently so that the process does not lose credibility . Recovery of stolen wealth of the citizenry is a noble cause and iit must be legitimately and legally pursued where it is due but if in the process the constitutional and legal morality of the society and the recognized standards of fairness and impartiality are compromised then retrieval of the lost constitutional and legal morality may pose an even bigger challenge to the society at large in the days to come".
From the averments of the writ petition, available record including CM No. 849-P/2020, moved subsequently and from the arguments of learned counsel for the petitioner , it reasonably appears that the warrant issued against the petitioner for his arrest is tainted with mala fide on the part of NAB as he is not only one of the hard critics of the present government but also of NAB.
11. After discussing the element of mala fide in the case against the petitioner , we now move on to see whether he has any prima facie case in his favour? Our answer to the ibid question lies in affirmative. As has been discussed hereinabove that in response to the various call up notices, petitioner did appear before the Combined Investigation Team and presented before it his point of view regarding the respondents' allegation qua accumulation of assets beyond his known legal sources of income. The reply so submitted by the petitione r to the Combined Investigation Team is documented one and it will now be seen by the relevant forum whether his plea and defense is correct or otherwise but, at the moment, prima facie it appears that he has answered throu gh documents all the NAB's queries put to him through the numerous call up notices. Apart from responding to the NAB queries through various documents, another pronounced aspect of the case is that the petitioner is regularly attending this Court and has not misused the interim order whereby ad-interim bail before arrest was granted to him which aspect of the case too cannot be overlooked while deciding this petition.
12. For what has been discussed above, this petition is allowed and the ad-interim pre-arrest bail granted to the petitioner by this Court on 15.10.2020 is hereby confirmed against the existing surety bonds. However , petitioner is directed to fully co-operate with the respondents in the inquiry proceedings or investigation, as the case may be, and if on any occasion it is found that he has failed to cooperate in the inquiry or investigation proceedings then in that eventuality the NAB will be at liberty to approach this Court for recalling of this order .
13. Above are the detailed reasons for our short order of even date.