MALIK HAQ NAWAZ, CJ.----" Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and, the life itself would not be worth, living. This is why 'liberty' is called the very quintessence of a civilized existence..." (AIR 201 1 SC 312)
2. The National Accountability Ordinance, 1999 (NAB) came into existence with a lofty aim to eradicate corruption and corrupt practices and to hold accountable all those persons accused of or involved in such practices with a fair and transparent manner without any undue influence or pressure from any corner . The NAB negates harassment of any citizen or holder of public office on the basis of presumptions, unless there is substantial evidence available against the person accused of corruption or corrupt practices. It is very unfortunate and regretful that this institution has seen political interference from time to time and acted as directed by ring leaders of the political party which is in power to victimize even a fair and just officer of the land who denies participation in the fleet of corrupt politicians. As a result of this trend, a dark spot has emerged on the performance of this institution with a deadly threat to those honest officers who do not want to be puppet of corrupt politicians or officers in completion of their evil desires.
3. Recently , the honourable Supreme Court of Pakistan, while commenting on the conduct of National Accountability Bureau (NAB) in its illuminating judgment passed in PLD 2020 SC 456 titled Khawaja Salman Rafique and others v . Chairman NAB and others has observed that: "The present case is a classic example of trampling fundamental rights, unlawful deprivation of freedom and liberty and the complete disregard for human dignity as guaranteed by the Constitution. NAB's conduct throughout this case is a clear manifestation of their utter disregard for law, fair play, equity and propriety . Indeed, curbing loot, plunder and combating corruption is a noble cause. Nonetheless, the means, process and mechanism employed therefore should be within the parameters as prescribed and mandated by the law and not in derogation thereof".
4. The petitioner Syed Akhtar Hussain Shah, Secretary Education Gilit-Baltistan, has filed the instant writ petition, wherein it is prayed that "the petitioner may be granted bail before arrest in the inquiry proceedings conducted and pending before respondents on the complaint of Capt. (R.) Shafi and till the decision of the present petition".
5. Brief facts of the case as apparent from the record are that the present petitioner has served on various prestigious positions in his career in Gilgit-Baltistan. During the years 2015 to 2017, he was serving as Secretary Works Gilgit-Baltistan, whereas presently he is on the post of Secretary Education Gilgit-Baltistan. On 19.05.2020, the Executive Board of NAB approved to initiate five inquires including the inquiry against the present petitioner on the application of Capt. (Rtd.) Muhammad Shafi (Ex. Opposition Leader of GBLA) addressed to Chairman, National Accountability Bureau, Attaturk Avenue Islamabad.
6. The allegations against the petitioner leveled by applicant Capt. (R.) Muhammad Shafi in his application, are reproduced for ease as under: "It is brought into your knowledge that Ex. Secretary Works GB Syed Akhtar Hussain Rizwi has constructed a link road at Hargisa Nallah Skardu costing millions of rupees mainly for his personal benefit which is (sic) in due public interest. He has drawn compensation of eighteen million against his own barren land at the site and converted the rest of land into commercial land through link road from both side of his land. According to my information, he has misused his powers and government (sic) at Secretary Works Department GB and caused million losses to the government exchequer ."
7. Learned counsel appearing on behalf of petitioner submitted that the complaint against the petitioner by Capt.
(R.) Muhammad Shafi is based on mala fide intention to get his ulterior motives. He further submitted that the allegations against the petitioner are false and fabricated. The learned counsel further argued that there is no believable and tangible evidence available against the petitioner . The learned counsel contended that it is alleged in the complaint that the petitioner has drawn compensation of 18 million against his own barren land and converted the rest into commercial land to link road is totally false, since the land belongs to the father of petitioner and his father has received the compensation under protest. He further argued that the father of petitioner had filed a reference petition against the impugne d award of alleged road in the Court of Judge, Land Acquisition Skardu which is decided partially in favour of father of the petitioner and same is also challenged before this Court. The learned counsel submitted that the road under question was constructed as an alternative for traffic on the direction to Chief Minister to reduce traffic pressure within the city of Skardu. The learned counsel submitted that there is no question of corruption and misuse of powers on the part of petitioner as the career of the petitioner is immaculate and the inquiry against the petitioner through NAB is the result of political victimization. The learned counsel concluding his arguments submitted that the petitioner has received threats of arrest from NAB, and if the pre- arrest bail to the petitioner is not granted , then the dignity and honour of the petitioner is at stake. The learned counsel relied upon several case law inter alia 2007 PCr.LJ (Kar) 1515, 2007 P.Cr.LJ (Kar) 1957, 2008 SCMR 1012 , 1994 SCMR 1299 , PLD 2011 SC 1144, PLD 2016 SC 276, 2011 SCMR 985, PLD 2001 SC 607, PLD 2001 SC (Kar) 419 and 2010 PCr .LJ 131 1.
8. On the other hand, the Special Prosecutor for NAB appearing on behalf of respondents opposed this writ petition by contending that it is the responsibility of NAB to crush corruption and corrupt practices from the country indiscriminately . The learned Special Prosecutor for NAB further argued that the competent authority has approved to initiate inquiry against the petitioner by following legal procedure. He further contended that the petitioner has caused 18 million loss to the government exchequer to provide benefit to his father and for this purpose he has misused his power being Secretary of Woks Department Gilgit-Baltistan. The learne d Special Prosecutor submitted that there is no question of political interference in the matter , prime facie NAB has sufficient' documentary evidence to connect the petitioner with the allegations. Concluding his arguments, he submitted that there is no violation of fundamental rights of the petitioner , thus the writ petition may be dismissed holding devoid of merits.
9. We considered the arguments advanced by the learned counsel for the parties and perused the available record.
10. It is a well settled principle that the relief of pre-arrest bail is extraordinary only in extraordinary circumstances, but the term 'extraordinary circumstances' is required legal backing and explanation, regarding which law so far is mum. This Court, in case titled Syed Hadi v. NAB and others' reported as 2018 PCr.LJ 231, has defined extraordinary circumstances of pre-arrest bail as under: "(i) The accused is not nominated in the FIR or his name surfaced afterwards, that too in a remote manner .
(ii) Where the narration of the FIR is such, that benefit of doubt cannot be withheld.
(iii) Where the recipe of the offences is of such a nature that post arrest enlargement of accused on bail is evident even if the interim relief of pre-arrest bail is denied.
(iv) Where the supplementing material/evidence collected by the investigating agency is defective, feeble or laconic to such an extent that a prima facie link of the of fender and the of fence/of fences cannot be established.
(v) Where ulterior/sinister , perverse and sordid motives could be inferred from the available material.
(vii) Where the FIR is lodged in a flagrant violation of the mandate given by the general or by a special law. Where the FIR depicts only a civil liability Court should be extra cautious in dealing with such an FIR, since there are many offences like that of deception, fraud, forgery , misappropriation and cheque dishonour for which there exists remedies in both civil/criminal law, the remedy available in criminal law must not be denied on the strength of availability of adequate compensation in civil law, since the same would make the penal provision redundant and extinct.
(viii) Of course where the of fence/of fences is not of such nature af fected public at large."
11. Perusal of complaint filed by Capt. (R.) Muhammad Shafi (Ex. Opposition Leader GBLA) and the allegations alleged therein, shows that the complainant has imposed false allegations on the petitioner with a surmise that the land which is acquired for construction of road belongs to the petitioner and the alleged compensation amount is also received by the present petitioner . Respondents have failed to bring on record any such material regarding ownership of land or receiving of compensation amount by the present petitioner . The acquired land belongs to the father of petitioner and he has received the said compensation amount under protest from the concerned authorities. The father of the petitioner has impugned the said award in the Court of Judge, Land Acquisition Skardu, which is partly decided and an appeal against the same judgment is pending before this Court.
12. Section 52 of the Muhammadan Law narrates that nobody is entitled for any share in property until the ancestor is alive. The referred section is reproduced for convenience as under: "S. 52. Birth Right not recognized: The right of a heir apparent or presumptive heir, comes into existence for the first time on the death of the ancestor , and he is not entitled until then to any interest in the property to which he would succeed as a heir if he survived the ancestor ."
Admittedly , the father of present petitioner is still alive, thus the petitioner is not owner of the land acquired for the road and if the petitioner is not owner of the land, then it can safely be inferred that the allegation of 18 million loss to government exchequer is false and baseless.
13. Secondly , the allegation of misuse of powers being Secretary to Works Department Gilgit-Baltistan also appears fade in the circumstances. The award of alleged road was duly prepared and passed by following legal procedure by the competent authorities and the affectees have already received the compensation amount, thus the allegation of misuse of powers is not valid, because there is no documentary evidence on record to prove the allegation of misuse of powers.
14. The matters where liberty of a person is in question, Judges while keeping in view the delicateness and sensitivity of the matter , should apply their judicious mind and one should not be allowed to crush the fundamental rights guaranteed by the Constitution of the land in a regardless manner , because there is no compensation or alternate remedy for a person, who is arrested and confined without just cause for a long time. The honourable Supreme Court of Pakistan in 2016 SCMR 18 has observed as under: "To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively , however , this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Crimin al Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in Jail without just cause and reasonable ground".
15. One of the universally acknowledged fundamental rights is dignity of man, which cannot be limited at any cost and one of the grave consequences of arrest, is the humiliation and disgrace resulting from such arrest, to the accused and his entire family , which causes irreparable harm to a person's reputation and fame in society . In the case reported as AIR 201 1 SC 312 at 3030, it is held "A great ignominy , humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for entire community . Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage".
16. After browsing the available record, we have inferred that the complaint of Capt. (R.) Muhammad Shafi is based on personal motives and sinister design s. The complainant has neither provided any documentary evidence in support of his allegations, nor NAB has succeeded to extract any incriminating material. Mere a simple application containing frivolous and baseless allegations against an honest officer, cannot be used as a tool to arrest and victimize him to fulfill the vicious ends of a motivated complainant in absence of confidence inspiring evidence. The honourable Supreme Court of Pakistan, in its landmark judgment passed in the case of Khawaja Salman Rafique and others as referred above, has ruled out that: "72. Arrest of any person is a grave matter . Capricious exercise of the power to arrest has deleterious consequences, thus highlighting the need to exercise it with care, caution and sensitivity . Arrest of a person has to be justified not only by referring to prima facie evidence and adequate actionable material sufficiently connecting the person with the offence/crime complained of, but also by showing that in the given circumstances, there were no other less intrusive or restrictive means available. The power of arrest should not be deployed as a tool of oppression and harassment".
Even a layman can infer from the attending circumstances of the present case that the application of the complainant is an open assault on the dignity and liberty of the petitioner , which as per Arts. 14 and 15 of the Constitution are guaranteed fundamental rights.
17. We, in the wake of above detailed discussion, by allowing the instant writ petition, hereby confirm ad-interim pre-arrest bail already granted to the petitioner on 08.06.2020, on the same terms and conditions.
18. W rit Petition No.1 14/2020 is disposed-of f accordingly . File