Through the instant criminal miscellaneous petition, the petitioner, Imran Ahmad Khan Niazi, seeks the grant of post-arrest bail in FIA case No.SJC-1/T/01/2024, dated 18.09.2024, registered under Sections 109 and 409 of the Pakistan Penal Code, 1860 ("PPC") read with Section 5(2) of the Prevention of Corruption Act, 1947 ("the 1947 Act"), at Police Station, FIA, Anti-Corruption, Islamabad.
2. The petitioner is the former Prime Minister of Pakistan. In this case, he was arrested on 13.07.2024 by National Accountability Bureau ("NAB") but has remained incarcerated in different other cases since 05.08.2023. The investigation conducted by NAB finally led to the filing of Accountability Reference No.01/2024 before the learned Accountability Court-II, Islamabad on 19.07.2024. The petitioner and his wife, Bushra Imran Khan, were arrayed as accused in the said reference. The petitioner and his wife had filed post-arrest bail petition before the learned Accountability Court- II, Islamabad.
3. As a result of the judgment dated 06.09.2024 passed by the Hon'ble Supreme Court in Intra Court Appeals No.2, 3 and 4/2023, amendments made in the National Accountability Ordinance, 1999 through the National Accountability (Amendment) Act, 2023, National Accountability (Second Amendment) Act, 2023 and National Accountability (Amendment) Act, 2022 were held to be lawful as a consequence of which the said Accountability Reference No.01/2024 did not fall within the jurisdiction of the learned Accountability Court. Vide order dated 09.09.2024, the learned Accountability Court-II, Islamabad turned down the request made by the learned counsel for the petitioner to decide the pending post-arrest bail petition. The learned Accountability Court-II, Islamabad, vide order dated 09.09.2024, referred the case to the Senior Special Judge (Central-I), Islamabad and the parties were directed to appear before the said Court on 10.09.2024. On 18.09.2024, the case against the petitioner and his wife was registered as FIA Case No.SJC- 1/T/01/2024.
4. On 12.09.2024, the petitioner and his wife had filed writ petition No.2716/2024 before this Court seeking a direction to the Special Judge (Central-I), Islamabad to decide the pending post-arrest bail petitions expeditiously. The said writ petition was disposed of vide order dated 18.09.2024. The operative part whereof is reproduced herein below:- "7. The National Judicial (Policy Making) Commission has already issued a policy according to which "bail applications under Section 497 of Cr.PC shall be decided not beyond a period of 3 days by the Magistrate, 5 days by the Court of Sessions and 7 days by the High Court." To a Special Court, the timeline given for the Court of Sessions would apply. Therefore, I deem it appropriate to dispose of the instant petition with the observation that the learned trial Court may decide the pending post-arrest bail petitions by bearing in mind the mandate under the said Policy."
5. The Senior Special Judge (Central-I), Islamabad vide order dated 30.09.2024 dismissed the post- arrest bail petitions filed by the petitioner and his wife. On 03.10.2024, the petitioner's wife filed Crl.
Misc. No.1744 B/2024 before this Court seeking post-arrest bail in FIA Case No.SJC-1/T/01/2024 dated 18.09.2024, registered under Sections 109 and 409 PPC read with Section 5 of the 1947 Act.
Vide order dated 23.10.2024, the said petition was accepted and the petitioner's wife was admitted to post-arrest bail. On 31.10.2024, the instant post-arrest bail petition was filed seeking the petitioner's release on bail.
6. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that on account of being the former Prime Minister, the petitioner has been subjected to political victimization by the registration of several cases against him; that the petitioner has remained incarcerated since 05.08.2023 in different cases; that in the instant case, he was arrested by NAB on 13.07.2024 and has remained incarcerated for more than four months; that the investigation in the case against him is complete and his custody is not required for any further questioning; that the petitioner is more than 72 years of age; that after the case was referred by learned Accountability Court-II, Islamabad to the Federal Investigation Agency ("FIA") on 09.09.2024, FIA completed the probe against the petitioner and his wife on 20.09.2024; that the prosecution has been selective in nominating the accused in the case; that there is a substantial delay of three years in the registration of the case against the petitioner; that the statements of five witnesses against the petitioner have also been recorded with a substantial delay; and that whether the petitioner exerted pressure and undue influence on the private appraiser, Sohaib Abbasi, through the ex-Comptroller to the Prime Minister's Office, Syed Inam Ullah Shah, for the jewellery set gifted to the petitioner's wife to be undervalued has to be proved in the proceedings before the learned trial Court.
7. Learned counsel for the petitioner went through the contents of the report under Section 173 of the Code of Criminal Procedure, 1898 ("Cr.PC") and submitted that at best the case against the petitioner was that he did not deposit the jewellery set with the Cabinet Division / Toshakhana; that there is no allegation against the petitioner to the effect that the factum as to receipt of the jewellery set had not been reported to the Cabinet Division / Toshakhana; that the Cabinet Division's Office Memorandum ("O.M.") dated 18.12.2018 which was in vogue when the jewellery set was gifted to the petitioner's wife does not make the non-deposit of a gift liable to "appropriate action;" and that when the said jewellery set was gifted to the petitioner's wife, "relevant rules" had not been framed for taking action against an individual who had not reported the receipt of a gift; and that since this Court vide order dated 23.10.2024 granted post-arrest bail to the petitioner's wife in the very same case, therefore under the principle of consistency, post-arrest bail ought to be granted to the petitioner.
8. On the other hand, learned Special Prosecutor, FIA came up with a well prepared brief on the case, as before. He relied on the compendium of office memoranda containing the procedure for the acceptance of gifts and their disposal. He further submitted that the Cabinet Division's O.M. dated 18.12.2018 was in force when the petitioner's wife retained the jewellery set which was gifted to her by the Crown Prince of Kingdom of Saudi Arabia; that the said O.M. has the legal status of a policy decision; that under the applicable procedure, the petitioner and his wife were duty bound to have deposited the jewellery set with the Cabinet Division / Toshakhana; that although the then Deputy Military Secretary, on 18.05.2021, had declared the factum as to the receipt of the said gift to the Section Officer of the Toshakhana along with a request for price assessment, however, the said set was never deposited with the Cabinet Division / Toshakhana; that the Toshakhana Section had engaged a private appraiser, namely Sohaib Abbasi, who has become an approver against the petitioner and his wife; that the said private appraiser also provided an undervalued assessment on 26.05.2021 on the basis of pressure exerted by the petitioner and his wife; that on 27.05.2021, the Collectorate of Customs had also provided an undervalued price assessment; that on 28.05.2021, the under valued price assessm ent was reported by the Cabinet Division to the Deputy Military Secretary; that on the basis of such undervalued price assessment, the petitioner's wife, on 08.07.2021 deposited an amount against challan No.2043 with the Toshakhana; that by retaining the said jewellery set, the petitioner in collusion with his wife had not just violated the procedure for the acceptance and disposal of gifts, but had also committed an offence under Section 409 PPC read with Section 5(2) of the 1947 Act; that the petitioner was bound to declare and deposit the gift received by his wife during a foreign visit; and that the principle of consistency will not apply in the instant case as the role of the petitioner in committing the offence was different from that of his wife.
9. Learned Special Prosecutor, FIA further submitted that the offence of criminal breach of trust under Section 409 PPC carries a sentence of imprisonment for life or with a sentence of either description for a term which may extend to ten years; that the petitioner is not entitled to the concession of bail since he has already been convicted in a similar case by the Accountability Court-I, Islamabad vide judgment dated 31.01.2024; that although the sentence awarded to the petitioner has been suspended by the appellate forum but such suspension does not wipeout the petitioner's conviction; and that since the petitioner has a criminal history, he is not entitled to the concession of post-arrest bail. Learned Special Prosecutor, FIA prayed for the post-arrest bail to be dismissed.
10. I have heard the contentions of the learned counsel for the petitioner as well as the learned Special Prosecutor, FIA and have perused the record with their able assistance.
11. The gist of the allegation against the petitioner is that during the period between 07.05.2021 to 10.05.2021 when the petitioner, as the Prime Minister, along with his wife visited the Kingdom of Saudi Arabia, his wife received a Bvlgari jewellery set as a gift from the Crown Prince of the said Kingdom; that although the receipt of the said gift was reported to the Cabinet Division, the same was not deposited with the Toshakhana / Cabinet Division and its possession was retained by the petitioner and his wife; that as a result of the influence exerted by the petitioner and his wife on the private appraiser, namely Sohaib Abbasi, through the ex-Comptroller to the Prime Minister's Office, Syed Inam Ullah Shah, the jewellery set was assessed at undervalue so that the petitioner and his wife could purchase the same by paying 50% of the undervalued amount; and that the petitioner's wife by paying 50% of the undervalued amount, caused a loss amounting to Rs.32,851,300/- to the national exchequer.
12. The "procedure for the acceptance and disposal of gifts" contained in the Cabinet Division's O.M. dated 18.12.2018 was in force when the said jewellery set was allegedly gifted to the petitioner's wife. In the report under Section 173 Cr.PC, stress has been laid on clause (1) of the said procedure to bring home the point that the petitioner was not just liable to declare the receipt of the gift but also to deposit the same with the Toshakhana / Cabinet Division, and that such non-deposit would entail criminal liability under Section 409 PPC.
13. For the purposes of clarity, clause (1) of the said O.M. dated 18.12.2018 is reproduced herein below:- "(1) The responsibility rest with the individual recipient to report receipt of the gift(s) to Cabinet Division. All gifts received by the Government/Public functionaries irrespective of their prices, must be reported and deposited immediately in Toshakhana of the Cabinet Division, Government of Pakistan. If it is found, on checking, that an individual has not reported the receipt of a gift, appropriate action will be taken against him under the relevant rules."
(Emphasis added)
14. Now, it has not been denied that the factum as to the receipt of the jewellery set had been declared by the then Deputy Military Secretary of the former Prime Minister to the Toshakhana / Cabinet Division on 18.05.2021. This is explicitly mentioned in the report under Section 173 Cr.PC. The reason why criminal prosecution is taking place against the petitioner and his wife is that the said jewellery set is alleged to have never been deposited in the Toshakhana / Cabinet Division. But prima facie such non-deposit does not entail "appropriate action" under "the relevant rules" in terms of the O.M. dated 18.12.2018. It is the non-reporting of the receipt of the gift that entails appropriate action under the rules. In order to overcome this, the Cabinet Division on 18.03.2023 issued an O.M., clause (1) whereof is substantially the same as clause (1) of the O.M. dated 18.12.2018 except that the non-deposit of a gift with the Toshakhana within a prescribed time limit is required to be met with "appropriate punitive action" under "the relevant rules." For the purposes of clarity, clause (1) of the O.M. dated 18.03.2023 is reproduced herein below:- "(1) The responsibility rests with the individual recipient to report receipt of the gift(s) to Cabinet Division. All gifts received by the Government/Public functionaries irrespective of their prices, must be reported and deposited in Toshakhana of the Cabinet Division, Government of Pakistan within 30 days of receipt of the gift(s) or 30 days from the date of return to Pakistan in case of foreign visit. If it is found, on checking, that an individual has not reported the receipt of gift(s) to Cabinet Division and deposited it in Toshakhana within the time limit, appropriate punitive action will be taken against him / her under the relevant rules."
(Emphasis added)
15. The said O.M. dated 18.03.2023 was to have effect from 22.02.2023. Learned Special Prosecutor, FIA submitted very fairly that the said O.M. dated 18.03.2023 does not have retrospective effect so as to be made applicable to the case against the petitioner which took place almost two years before the said O.M. was issued. The fact that the O.M. dated 18.12.2018 does not make the non- deposit of the gift with the Toshakhana / Cabinet Division liable to "appropriate action" under "the relevant rules," this would, in my tentative view, make the case against the petitioner as one of further inquiry.
16. Much emphasis was laid by the learned Special Prosecutor, FIA on the fact that the petitioner and his wife had earlier been convicted by Accountability Court-I, Islamabad vide judgment dated 31.01.2024 for having retained a gift of a Graff jewellery set made to petitioner's wife by the Crown Prince of the Kingdom of Saudi Arabia on 18.09.2020. Learned Special Prosecutor, FIA was correct that the suspension of the sentence imposed on the petitioner does not wipeout his conviction but it ought to be borne in mind that when the learned appellate Court suspended the petitioner's sentence vide order dated 01.04.2024 passed in Crl. Misc. No.107/2024 in Crl. Appeal No.75/2024, it was solely on the basis of the no-objection to the suspension of the sentence by the learned counsel for the NAB and not as a result of an inter-parte hearing. The judgment of the learned Accountability Court-I, Islamabad, whereby the petitioner was convicted cannot be held to have attained finality as an appeal against the same is pending before this Court. Moreover, the learned counsel for NAB has also made a statement before the Court hearing the appeal against the petitioner's conviction that the very judgment of Accountability Court-I, Islamabad be set-aside on account of the procedural irregularities during the trial and the matter be remanded to the trial Court.
17. The learned Special Prosecutor, FIA also laid stress on the statements recorded under Section 161 Cr.PC before NAB's Investigation Officer that undue influence and pressure was exerted by the petitioner and his wife on the private appraiser, Sohaib Abbasi through the ex-Comptroller to the Prime Minister's Office, Syed Inam Ullah Shah so that the jewellery set is undervalued enabling the petitioner's wife to purchase the same at a reduced rate. It is not FIA's case that the petitioner or his wife had directly extended threats or had pressurized the private appraiser to undervalue the jewellery set. The private appraiser's evidence has not been recorded by the learned trial Court as yet. Once such statement is recorded, it would be for the learned trial Court to determine its veracity and evidentiary value since he was earlier an accomplice and now an approver on the basis of pardon granted to him by the Chairman, NAB under Section 26 of the National Accountability Ordinance, 1999 on 23.05.2024. No such pardon appears to have been granted to the private appraiser in terms of Section 337 Cr.PC by the FIA authorities, although apparently his statement under Section 164 has been recorded. It remains to be seen whether the private appraiser and the ex-Comptroller of Prime Minister's Office give evidence which is consistent with their statements under Section 161 Cr.PC.
18. My tentative view is that the petitioner's case is not on higher pedestal from that of his wife who has already been granted post-arrest bail by this Court as the report under Section 173 Cr.PC places both of them in the same category. The entrustment of the jewellery set is alleged against the petitioner as well as his wife. However, the receipt for the payment has admittedly been issued to the petitioner's wife and not to the petitioner.
19. The petitioner is 72 years of age. In this case, he was arrested on 13.07.2024 and remained incarcerated at Central Prison, Rawalpindi for more than four months. The Investigation Officer has not felt the need to question the petitioner after the entrustment of the case to FIA. Since the reference against the petitioner had earlier been filed before Accountability Court-I, Islamabad, this would mean that the investigation in the case is complete. The charge against the petitioner has not been framed as yet, therefore, the conclusion of the trial is not in sight. The evidence in the case is largely documentary in nature which is already in the prosecution's possession. Hence, there is no chance of the petitioner tampering with such evidence. Bearing in mind the principles of consistency as well as my tentative view that this is the case of further inquiry, post-arrest bail was granted to the petitioner vide short order of even date, which is reproduced herein below:- "Arguments of the learned counsel for the petitioner as well as the learned Special Prosecutor, FIA have been heard at length.
2. For detailed reasons to be recorded later, the instant petition is accepted and the petitioner is admitted to post arrest bail in Case No.SJC1/T/01/2024 dated 18.09.2024 registered under Sections 109, 409 of PPC read with Section 5(2) of Prevention of Corruption Act, 1947 at Police Station, FIA Anti-Corruption Islamabad, subject to the furnishing of bail bonds in the sum of Rs.10,00,000/- with two sureties in the like amount to the satisfaction of the learned trial Court.
3. The petitioner is cautioned not to misuse the concession of bail and appear before the learned trial Court on each and every date of hearing unless a specific exemption is granted by the said Court. In the event, the petitioner misuses the concession of bail, it goes without saying that the prosecution can apply for the recall of the bail granting order under Section 497(5) of Cr.P.C."