2022 P Cr (PLP)

Through the instant petition, the learned counsel for the petitioner has made the following prayer, which is as under:- "In view of the foregoing, it is most respectfully prayed that this petition may kindly be accepted and the petitioner be admitted to post-arrest bail in investigation No.1(61)HQ/ 1026/NAB-L dated 29.01.2021."

2. Briefly, the accusations against the petitioner as per grounds of arrest are as following:- i. That the petitioner/accused became Public Office Holder in 1991 as Member Senate of Pakistan. Before holding public office, he had a house situated at Mehmood Ghazanvi Road, Sialkot. The accused has accumulated assets comprising land measuring 40 kanal approximately in Kent Housing Society Sialkot, commercial properties in Sialkot, two apartments in Islamabad, acquisition and disposal of various plots in Lahore, incurred huge household expenditure, repaid loans along with markup and made investments in different private firms in his own name, in the name of his family members and benamidars. Whereas, the evidence reveals that total income of the accused including loans availed is Rs.592 million from known sources of income from 1987 to 2018. Further, accused has received cash deposits in his bank accounts and in the bank accounts of his family members to the tune of Rs. 226 million approximately which are prima facie unjustified. ii. The petitioner was given fair and ample opportunity to justify the acquisition of huge assets and bank deposits in the light of known sources however, he failed to justify the assets so acquired. iii. The petitioner being holder of public office has acquired assets disproportionate to known sources of income and committed offence under section 9(a)(v) of National Accountability Ordinance, 1999. Moreover, the accused has concealed and disguised the origin of the disproportionate assets, hence he has also committed the offence under section 3 of Anti-Money Laundering Act, 2010 (AMLA).

3. Learned counsel for the petitioner has submitted that the petitioner was Parliamentary Leader of his Political Party (PML-N) in the National Assembly and was a senior member of the National Assembly; that the petitioner started his political career in the year 1991, when he was elected as a member of Senate of Pakistan; that prior to becoming a politician, the petitioner started practice of law for two years before starting his career as a banker in the year 1971; that the petitioner remained employee as a Banker in UAE w.e.f 1979 to 1990; that in the year 2017, Muhammad Usman Dar of PTI approached against the petitioner at Islamabad High Court by filing a writ of quo warranto by alleging that the petitioner while holding public office in Pakistan held an Iqama in UAE in relation to his employment with a UAE based limited liability company called IMECO; that the petitioner failed to disclose his monthly salary sought from such employment; that in April, 2018, the Islamabad High Court, issued a writ against the petitioner and disqualified him under Article 62(1)(f) of the constitution and against the above said decision, the Hon'ble Supreme Court of Pakistan allowed the petitioner's appeal with the order that no case was made out against the petitioner for non-declaration of a source of income; that the petitioner already provided to respondents an explanation of various sources of income, which negated the accusation regarding assets; that the petitioner submitted complete record of declaration of assets with FBR and the Election Commission of Pakistan to substantiate his bona fide and the CIT failed to appreciate that FBR conducted a detailed audit of the petitioner's Tax Return-2013 and no discrepancy whatsoever was found; that the respondents failed to fulfil the essential ingredients to substantiate an allegation; that during the two years of inquiry conducted by NAB (Rawalpindi and Lahore), the respondents failed to conduct any meaningful exercise to quantify both the price of assets as well as the known source of income; that the necessary element of the offence of money laundering is the commission of a predicate offence and without commission of a such offence, there can be no offence of money laundering; that in the year 1991 to 2012, the petitioner was one of the investors in a Restaurant in UAE and the remittances declared in his return include the amounts, which he earned as return to this investment; that the petitioner bonafidely disclosed his employment contract, Iqama, salary from such employment and the same spent by him cannot be denied by the NAB; that the allegation of corruption and corrupt practice regarding investment of the petitioner in a partnership Firm namely Tariq Mir and Company was without material; that in the year 2009, the petitioner's wife became a partner in the Tariq Mir & Company vide duly executed partnership deed; that on 01.01.2016, the petitioner and his family members retired from Tariq Mir and Co. and sold their shares to Ch. Arshad Javed Warraich, who was owner of Messrs Punjab Enterprises; that all the allegations levelled against the petitioner are without any solid material, therefore, the petitioner may be released on bail in investigation No.1(61) HQ/1026/NAB-L dated 29.01.2021.

4. Conversely, learned Special Prosecutor appearing for the NAB has endorsed the report and para-wise comments already submitted on 28.04.2021 and 18.06.2021 by the NAB and has contended that the petitioner acquired assets beyond known source of income and in this regard inquiry was authorized by the Chairman NAB to Regional Office NAB, Rawalpindi on 04.09.2018, thereafter, the inquiry was transferred from NAB Rawalpindi to NAB, Lahore vide letter No.1(991)/ 2018/DOL(L)/IM-1/NAB 30th June, 2020; that the inquiry was upgraded into investigation and warrant of arrest was issued against the petitioner; that during investigation, it was found that the petitioner held a public office in the year 1991 as Member of Senate of Pakistan; that total net worth of the petitioner in the year 1993 was 5.1 million as per FBR record and later on, the petitioner acquired various immovable/movable assets and incurred expenditures to the tune of Rs.404.462 million till the year 2018; that during investigation, the petitioner claimed that his main source of income was his employment in private company namely IMECO based in UAE from 2003 to 2018 and foreign business income from ZEN Restaurant but the petitioner failed to provide bank account statements maintained in UAE and the Managing Director IEMCO was called to join the investigation but he did not join the investigation; that the investigation is being conducted on the allegation of assets disproportionate to known source of income and that sufficient incriminating material is available against the petitioner, therefore, the petition may kindly be dismissed.

5. We have heard the learned counsel for the petitioner as well as the learned Special Prosecutor for NAB and perused the available record.

6. The learned Special Prosecutor stated that Usman Dar, Central Deputy Secretary General, Pakistan Tehreek-e-Insaf, submitted two complaints with respondent No. 1 on 31.01.2018 and 01.03.2018. On the second complaint dated 01.03.2018 inquiry was initiated against the petitioner. The genesis of the prosecution lies in a second complaint dated 01.03.2018 lodged by Usman Dar, Central Deputy Secretary General, Pakistan Tehreek-e-Insaf, with the respondent No.1 alleging as following: An inquiry was authorized against the petitioner-accused on the allegations of acquiring assets beyond known sources of income and Money Laundering on 04.09.2018 by the respondent No. 1 to regional office NAB Rawalpindi. Thereafter the inquiry was transferred from NAB Rawalpindi to NAB Lahore through letter bearing F.No. 1(991)/ 2018/DO(L)/IM-1/NAB 30th June, 2020. During the pendency of inquiry the petitioner was arrested in execution of the warrants of arrest issued by the Chairman NAB on 29.12.2020. Thereafter, the inquiry was upgraded into investigation through authorization letter No. 1(61)HQ/ 1026/NAB-L dated 29.01.2021.

7. As per report submitted by NAB on 28-04-2021 the petitioner started filing income tax returns from 1986-87. Details of all known sources of income and expenditures (assets acquired and personal expenditures) of the petitioner during the years 1987-2018 are reflected from the following tables:- Table of assets acquired Income (1987-2018) Rs. Million 1 Salary 29.717 2 Income from Business 82.186 3 Assets disposed off 62.412 4 Salary of wife 10.792 5 Foreign Currency Encashment 04.689 6 Dividend 14.000 7 Vehicles sold 06.600 Total 210.393 Table of personal expenditures Expenditures (1987-2018) Rs. million 1 Domestic Expenditures 104.187 2 Purchase of Immoveable/moveable assets 300.275 3 Mark up paid on loans 35.000 Total 439.462 Assets disproportionate to the known sources of income. -230.000 million approx. Whereas, during the proceedings in titled petition second report was submitted by NAB on 18.06.2021. Wherein period of all known sources of income and expenditures of the petitioner was changed from 1987-2018 to 1990-2016. The reason for change of period was not mentioned in the second report neither the learned Special Prosecutor satisfied us. The detail of the assets acquired and personal expenditures of the petitioner during the years 1990-2016 are reflected from the following tables:- Table of assets acquired Income (1990-2016) Rs. million 1 Salary of accused and his wife 28.772 2 Income from Business 50.159 3 Assets disposed off 136.390 4 Dividend 16.347 5 Vehicles Sold 20.684 6 Amount received from JS Global Capital 15.620 7 Loan from Arshad Javed Warraich 24.720 8 Advanced of plot from Mian Waqar Aziz 40.000 Total 333.000 Table of personal expenditures Expenditures (1990-2016) Rs. million I Domestic Expenditures 80 II Purchase of Immoveable/moveable assets 136.831 III Mark up paid on loans 27.713 IV Investment in shares and business 157.614 V Mark-up paid on loans 50.740 Total 454.000 Unexplained expenditures (Total Income minas Total expenditures) -121.00 Amount expensed abroad -37.00 Total -158.00 The learned Special Prosecutor submitted that the petitioner became Public Office Holder in September 1991 as Member of Senate of Pakistan and thereafter continuously held public office. It was stated by the learned Special Prosecutor that the salary amounting to Rs.29.717 million and Rs.10.792 million was drawn by the petitioner/accused and his wife respectively being parliamentarian shown in table at Serial Nos. (1) and (4) given below para No. 3 of the report dated 28.04.2021. Whereas, in subsequent report dated 18.06.2021 the salary drawn by the petitioner/accused and his wife collectively was shown Rs.28.772 million. The learned Special Prosecutor failed to explain reason for decrease of salary of the petitioner and his wife from Rs.40.509 million to Rs.28.772 million. The learned Special Prosecutor remained unable to point out any other source of income of the petitioner and his wife. The NAB decreased Rs.11.737 million from the salary of the petitioner and his wife in second report without any plausible reasoning. Similarly income from business was also decreased from Rs.82.186 million to Rs.50.159 million. The second report is silent in this regard. The petitioner has relied on various sources of income for acquisition of present and past assets owned by him. In first report dated 28.04.2021 claim of the petitioner regarding income earned/amount received/loan from assets (properties) disposed of, Dividend, vehicles sold, Messrs JS Global Capital Ltd, loan from Arshad Javed Warraich, and advance of plot from Mian Waqar Aziz was not considered and allowed. However, these claims were considered and allowed by the NAB in second report dated 18.06.2021 as lawful source of income. After adjusting the income and expenditure of the petitioner, the petitioner was found to have acquired assets valued Rs.158 million (according to second report) which was disproportionate to his known sources of income and had thereby committed an offence under section 9(a)(v) of National Accountability Bureau Ordinance 1999 ("The NAB").

8. As noted supra, the allegation against the petitioner is that he has amassed assets disproportionate to his known sources of income. The learned Special Prosecutor has categorically admitted on our queries that it is not a case of the prosecution that the petitioner acquired assets after receiving any kickbacks or any ill-gotten money or misuse of authority or corruption. In view of the statement of the learned Special Prosecutor it is not case of the prosecution that the petitioner by abusing his position, had acquired assets disproportionate to his known sources of income. The learned Special Prosecutor submitted that the petitioner claimed two sources of income in addition to sources mentioned in report dated 18.06.2021 (mentioned in preceding para No.6) i.e. Salary from employment with International Mechanical and Electrical Company (IMECO), United Arab Emirates ("UAE") and foreign business income from ZEN Restaurant in the tune of Rs.144 million (Rs.87 million from 2004 to 2018 salary from IMECO and Rs.57 million income from ZEN Restaurant from 2003 to 2012) from 1990 to 2018 and out of total foreign income i.e. Rs.144 million, the petitioner claimed that he received Rs.107 million approximately in Pakistan as foreign remittances while Rs.37 million approximately was expended abroad. It is case of the prosecution that the petitioner failed to provide the evidence regarding receipt of salary income in his bank account, and also income from ZEN Restaurant. As said sources were not proved, so above said amounts received through petitioner's account maintained with National Bank of Abu Dhabi, UAE in the bank accounts of the petitioner were not considered and allowed. It is pertinent to mention here that NAB admitted that they added Rs.37 million expended abroad by the petitioner in disproportionate to his known sources of income in second report dated 18.06.2021. However, NAB have not considered and allowed Rs.107 million approximately as salary from employment with IMECO and income from ZEN Restaurant received in Pakistan as foreign remittances in petitioner's bank accounts. On court query that whether terms and conditions of contract subsequent Iqama were gone through or not by the NAB, the learned Special Prosecutor submitted that the petitioner created two fake and fictitious sources of income i.e. ZEN Restaurant and salary income of foreign employment, so foreign remittance came from unknown sources. However, no investigation was conducted by the investigating officer to dig out the source of remittance received by the petitioner in his bank account. Even the remittances through banking channels cannot be further probed under section 13(2A) of the Income Tax Ordinance, 2001. It is pertinent to mention here that Honorable Supreme Court of Pakistan held in case of "Khawaja Muhammad Asif v. Muhammad Usman Dar and others" (2018 SCMR 2128) the execution of the employment contract an undeniable reality as following: "

17. For whatever its worth, as the execution of the employment contract with the UAE Company is an undeniable reality, the petitioner was required to declare the salary settled thereunder. Failure to do so would have resulted in taking the risk of rejection of his nomination paper on account of concealment of one of his sources of income." The accusation against the petitioner in complaint dated 01.03.2018 is that, he (the petitioner) being a public office holder engaged himself in foreign employment contract/Iqama and concealed receiving of Rs.16,00,000/- salary per month and income from Restaurant business and thereby has committed an offence of Money laundering. The documents on record produced by the petitioner with regard to documents registered on 30th May, 2004, 6th September, 2011, 7th July, 2013, 6th July, 2015 and 8th June, 2017 of foreign employment were registered with the United Arab Emirates Ministry of Human Resources and Emiratization. However, the investigating officer without verifying the correctness of employment contracts through Ministry of Foreign Affairs in accordance with law opined that same are fake documents. The learned counsel for the petitioner submitted that employment contracts are undeniable documents and the salary received in terms of employment contracts was not considered by the NAB. Besides, the petitioner invested US$ 25000/- in 1990 in the ZEN restaurant, UAE and declared his investment in income tax and wealth tax returns from the period 1991 to 2012. Whereas the prosecution alleged that the petitioner did not declare any income from business of ZEN Restaurant till the tax year 2010 as per FBR record which shows that he had no investment in Messrs ZEN Restaurant and the petitioner declared through revised wealth tax returns on 08.04.2002, whereupon, FBR regional office Sialkot was asked by the NAB to certify the veracity of assessment orders dated 08.04.2002 for revised statements submitted by the petitioner. FBR replied that the veracity/authenticity of said documents could not be confirmed as the same have not been found in Regional Tax Office, Sialkot. In this regard statement of Mr. Ismaeil, Additional Collector, Income Tax at Regional Tax Office, Sialkot was recorded by the investigating officer on 21.05.2021. The investigating officer has placed on the record above said statement along with reply of Mr. Ismaeil, Additional Collector, Income Tax at Regional Tax Office Sialkot to the letter of NAB verifying tax assessment orders bearing DCR No.222 to 226/33 and Nos. 227 to 332/33 both dated 08.04.2002. Contrary to the statement under Section 161 of Cr.P.C of Mr. Ismaeil, Additional Collector, Income Tax at Regional Tax/office Sialkot, he mentioned in his reply that, "NAB office has provided copies of wealth tax assessment orders bearing DCR Nos.222 to 226/33 and No. 227 to 332/33 both dated 08-04-2002 with the request to check the veracity of orders. In this regard it is submitted that as per Circular No. 15 of 2000 bearing C.No.4(5) OT/2000 dated 29.06.2000 Wealth Tax having been abolished with effect from assessment year 2001-2002. Original record relating to these assessment orders cloud not be traced, inspite of all efforts made by Regional Tax Office Sialkot." Whereas the learned counsel for the petitioner placed on the record Wealth Tax Return submitted on 08.04.2002. It reveals from order dated 08.04.2002 that additional tax under section 31B(1)(a) Income Tax Ordinance, 2001 is charged @ 15% from the due date of filing return to the date of completion of assessment which works out as under:- 1990-91 1392/- 1991-92 1392/- 1992-93 4989/- 1993-94 4611/- 1994-95 4271/- total Rs.16,655/- was paid by the petitioner and the petitioner has declared capital in ZEN Restaurant Dubai of US$ 25000 and exemption was claimed, which was allowed. Thereafter, case of the petitioner was selected for audit through computer random ballot and the case was assigned to the Audit Unit for conducting the audit on 28.10.2014. After approval of the competent authority, notice under section 177 of the Income Tax Ordinance, 2001 was issued to the petitioner. The audit report submitted on 24.02.2015, reveals that:- "Examination of the above documents revealed that no discrepancy was found during the conduct of audit. The salary has been paid by the Federal Government as MNA/Minister for the year under consideration and tax has been duly deducted/paid. Further the share from AOP being exclusively engaged in export is exempted. Hence, no adverse inference is drawn and income as declared is accepted. As discussed above, audit proceedings are closed in this case." Both learned counsel admitted that the omitted amount of salary and income from business, if added, there would be no disproportionate assets qua the petitioner. Still NAB has not finalized the outcome of the assets acquired by the petitioner mentioned at Sr. Nos. 3, 4, 6 and 7 of the table mentioned in para No.9 under the head of immovable assets of the report submitted on 18.06.2021.

9. It is the case of the petitioner that the certificate of Mr. Elias Salloum, Managing Director, IMECO was submitted with the investigating officer to substantiate that the foreign remittance was his salary drawn from foreign employment during year 2004 to 2018. But the investigating officer has not got verified the contents of the certificate through embassy nor summoned Mr. Elias Salloum, Managing Director, IMECO to record his statement. The petitioner specifically mentioned in Para No. 11 of the instant petition that: "That subsequently, a notice dated 29.09.2020 was issued by CIT, whereby the petitioner was directed to ensure the presence of Mr. Ilias Salloum, Managing Director, IMECO before the CIT along with certain record. The petitioner submitted his reply dated 08.10.2020 and reiterated his disclosure of foreign employment contract and enquired as to what offence was being inquired by NAB which required the personal attendance of Mr. Salloum, particularly when the petitioner had made a complete and honest disclosure regarding his assets, Along with his reply, the petitioner also provided a copy of the judgment titled "Khawaja Muhammad Asif v. Muhammad Usman Dar" reported 2018 SCMR 2128 passed by the Hon'ble Supreme Court."

10. The respondent No.4/investigating officer in reply to the above Para mentioned in report dated 18.06.2021 as under: "Denied being misconceived. That during inquiry proceedings, the petitioner submitted a copy of letter dated April 12, 2018 from "Elias Salloum" Managing Director of Messrs IEMCO wherein he stated that petitioner remained his employee from 2004-2018. It was also written on the said letter that a representative of the company was willing to come and appear before any court in Pakistan to confirm the stated facts. This letter was also submitted in Honourable Supreme Court of Pakistan. In view thereof, he was called upon but he did not join inquiry/investigation proceedings nor submitted any reply."

11. It is pertinent to mention here that Honorable Supreme Court of Pakistan held in case of "Khawaja Muhammad Asif v. Muhammad Usman Dar and others" (2018 SCMR 2128) as following: "

14. Before the High Court both the petitioner's counsel and the UAE Company which expressed its stand by filing a certificate, had maintained that the petitioner was not required to be physically present in UAE to serve the company."

12. On perusal of the certificate Ref: IRL/0547/SS dated April 12, 2018 it reveals that a representative of the company was willing to come and appear before any court in Pakistan to confirm the facts mentioned therein. The representative of the company was not summoned by the respondent No.4. Neither there is any tangible material, nor even any circumstantial material to prima facie conclude that remittance of Rs.107 Million was generation of the proceeds of crime. The foreign remittance declared in income tax return carries the presumption of truthfulness. Reliance is placed upon Brig. (R) Imtiaz Ahmad v. The State (PLD 2017 Lahore 23). Even the FBR record regarding the petitioner's claim has supplemented his claim qua the properties, income gained by him and foreign remittance. It is admitted position that the petitioner did not cause any loss to the government exchequer.

13. The reports dated 28.04.2021 and 18.06.2021 submitted by the respondent No. 4/investigating officer revealed that investigation is under process and reference will be filed in accordance with law. Whereas the learned Special Prosecutor submitted that reference was prepared and sent to the Chairman NAB for approval. All above said circumstances make out case of the petitioner one of further inquiry. The prosecution has yet to establish its case before the trial court. Taking these and all other facts and circumstances including the duration of non-submission of reference till date before the trial court into consideration the petitioner in our considered view is entitled to be granted bail. It is made clear that the observations contained touching upon the merits in the order shall not be construed as an opinion expressed on merits and all contentions are left open to be considered during the course of trial.

14. These are the reasons and findings for short order dated 23.06.2021, whereby instant petition is accepted and the petitioner is admitted to the post arrest bail subject to his furnishing bail bonds in the sum of rupees ten million with one surety in the like amount to the satisfaction of learned trial court. MH/M-132/L Bail allowed.