2021 P Cr (PLP)

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Rana Sana Ullah Khan seeks premium of pre-arrest bail in Call-Up Notice bearing No. 1(9)HQ/2156/IW-II/NAB-L dated 08.01.2020 issued under section 19 of The National Accountability Ordinance, 1999 ("hereinafter to be referred as NAO, 1999") and the subsequent proceedings thereto regarding accumulation of assets beyond known sources of income.

2. Learned counsel for the petitioner submits that there is a mala fide behind the proceedings initiated by the NAB authorities as the petitioner was initially arrested on 1.7.2019 in a narcotic case who was subsequently ordered to be released on bail by this Court vide order dated 23.12.2019 passed in Crl. Misc. No. 70510-B of 2019 but subsequently just after three days he was served with a Call-Up notice dated 27th December, 2019 in order to cause harassment and humiliation to him. It is also contended that the properties against which the inquiry is being conducted by the NAB are the same against which the learned Special Court ANF has already taken the cognizance. It is also contended that in view of the pending proceedings before a Special Court under CNSA, 1997 qua the same assets, NAB has no lawful authority to inquire into or investigate the same assets under the NAO, 1999. It is also maintained that allegations levelled against the petitioner do not disclose commission of any offence under the NAO, 1999 and as such NAB has exceeded its jurisdiction, while implicating the petitioner in the instant case. He added that NAB has exceeded its authority, while taking cognizance of the matter in issue.

3. Conversely, learned Special Prosecutor representing the NAB resisted the instant petition vehemently on various grounds.

4. Arguments heard and record perused with the able assistance of learned counsel for the petitioner as well as learned Special Prosecutor appearing on behalf of NAB.

5. The issue involved in this petition is twofold, put which the first is that initially the petitioner was arrested on 1.7.2019 in case FIR No. 47 dated 1.7.2019 registered under sections 9(c)/15/17 of Control of Narcotic Substances Act, 1997 read with sections 186/189/225/353, P.P.C. at Police Station Regional Director, Anti-Narcotic Force, Lahore and all the assets and properties of the petitioner subject matter of the inquiry before the NAB have already been frozen by the ANF on the allegation of having been acquired through involvement in Narcotics trafficking.

6. Secondly, an inquiry was initiated by the NAB Authorities on 20.12.2019 on the three different complaints lodged by one Ch. Tahir Riaz on 24.6.2019, 27.6.2019 and 16.8.2019 regarding accumulation of assets beyond known sources of income by the petitioner Rana Sana Ullah Khan. It was claimed therein that the petitioner had purchased various assets in the name of his benamidars and even his declared assets do not commensurate with his known sources of income.

7. In the backdrop of above, without touching the merits of the case lest it may prejudice the case of the parties at the trial, we have confined ourselves to the following specific questions:- i). Whether the NAB has jurisdiction to inquire into the properties and assets of the petitioner already frozen by ANF in connection with a Narcotic case registered against the petitioner prior to the initiation of inquiry by the NAB against the same properties? ii) Whether the NAB can take cognizance of the matter in hand without invoking the provisions of section 16-A(a) of NAO, 1999 when the learned Special Court constituted under the Control of Narcotic Substances Act, 1997 has initiated the process for freezing the properties of the petitioner on the application of ANF?

8. Perusal of the record depicts that sword of democles has been hanging over the head of the petitioner when he was arrested on 1.7.2019 in case FIR No. 47 dated 1.7.2019 registered under sections 9(c)/15/17 of Control of Narcotic Substances Act, 1997 read with sections 186/189/225/353, P.P.C. with Regional Director, Anti-Narcotic Force, Lahore. During the course of investigation of subject case assets of the petitioner held in his own name and in the names of his family members, close relatives were traced out and frozen under section 6(5) of ANF Act, 1997 and section 37(2)(3) of CNSA, 1997. Thereafter within stipulated period of time an application on behalf of ANF was moved for further continuation/confirmation of freezing of assets of the petitioner before the learned Special Court which was registered on 9.8.2019 and thereafter on 18.10.2019, learned Duty Judge Special Court (CNS), Lahore, passed the following order:- "Additional application under section 37(2) and (3) read with section 39 of CNSA, 1997 in respect of assets of respondents filed on 12.10.2019, has been annexed with this application. Petition is now adjourned to 02.11.2019 for further proceedings."

9. In such circumstances when the case was already pending before a court of competent jurisdiction, NAB could not have taken the cognizance of the matter with regard to the same properties which have already been frozen by the ANF and further process for continuation/ confirmation of freezing was pending before the court of competent jurisdiction without invoking the provisions of section 16-A(a) of the NAO, 1999, which for the sake of ready reference is reproduced as under:- 16-A. Transfer of cases.

(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman, National Accountability Bureau may apply to any Court of law or Tribunal that any case involving a scheduled offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded. In view of the above, we have no doubt in our mind that the NAB could not have taken the cognizance of the matter without invoking the provisions of section 16-A(a) of the NAO, 1999. Reliance in this respect is placed upon the judgment of Hon'ble apex Court in the case reported as "Anti-Corruption Establishment Punjab through D.G. v. National Accountability Bureau through Chairman NAB and others" (2016 SCMR 92).

10. There is yet another intriguing aspect of the matter which smacks volumes of mala fide on the part of the NAB as after arrest in the Narcotic case, the petitioner moved bail after arrest before the learned Single Judge of this Court and vide order dated 23.12.2019, the same was allowed. The operative para of the said order is hereby reproduced as under:-

9. Learned counsel for petitioner also argued that case was registered for the reasons that petitioner was a vocal Member of Opposition Party and was criticizing the policies of incumbent government and on that account he was put behind the bars. Though such argument at bail stage is not attached much weight for the reason that deeper appreciation at the stage of bail is not permissible nor desirable. However, in the context of petitioner being a vocal political leader of Opposition Party, this aspect of the case could not be ignored as political victimization in our country is an open secret. Law is also well settled that seriousness of allegation is not a ground for refusal of bail if on merits it is found that prosecution's case is doubtful as benefit of doubt always goes to the accused even at bail stage. Incarceration of accused before conviction in cases of doubtful nature is never approved by the Courts. Lapses in the prosecution case noted above are visible on surface of record like non-preparation of recovery memos at the place of recovery, non-investigation regarding involvement of petitioner in running a network of smuggling of narcotics and sending only 20 grams of contraband out of total quantity of 15 kilograms "Heroin" allegedly recovered from possession of petitioner do indicate prima facie that guilt of the petitioner needs further probe and his case calls for further inquiry. Co-accused of the petitioner were granted post-arrest bail by the trial court in this case which order has not been challenged by the prosecution." It is significant to point out here that just after three days from the passing of above-said bail granting order, the petitioner was served with call up notice dated 27.12.2019 whereby he was required to appear in person before Combined Investigation Team (CIT) on 2.1.2020 in connection with an inquiry initiated by the NAB Authorities on 20.12.2019 on three different complaints lodged by one Ch. Tahir Riaz on 24.6.2019, 27.6.2019 and 16.8.2019 against the petitioner and others on the allegations of accumulation of assets beyond known sources of income, whereas, all the assets and properties subject matter of the NAB inquiry have already been frozen by the ANF on the allegations of having been acquired through involvement in Narcotics trafficking and further process for continuation/confirmation of freezing is pending before the court of competent jurisdiction. We are unable to understand that what prevented the NAB Authorities from arresting the petitioner when he was already in custody and why they kept the inquiry pending and never issued any call up notice to the petitioner and as soon as he was ordered to be released on bail by this Court he was issued call up notice dated 27.12.2019.

11. For what has been discussed above, instant constitutional petition is accepted and ad-interim pre-arrest bail already granted to the petitioner vide order dated 05.03.2020 is hereby confirmed subject to his furnishing bail bonds in the sum of Rs. 05 million only (five million only) with two sureties each in the like amount to the satisfaction of the learned trial Court. The petitioner shall appear before the learned trial Court on each and every date till final disposal of the Reference. SA/S-44/L Pre-arrest bail grante