P L D 2017 Balochistan 89 (PLP)

ZAHEER-UD-DIN KAKAR, J.

This order disposes of Constitutional Petition No.257 of 2017, whereby the petitioner seeking bail in NAB Reference No.4 of 2016, on the grounds taken in the petition.

2. Precisely stated facts of the case as per NAB Reference No.4 of 2017 are that on receipt of a complaint against petitioner Imran Gichki, Ex-Personal Staff Officer to Chief Minister, Balochistan, Quetta regarding accumulation of assets beyond known source of income, an inquiry was authorized by the NAB authorities, which was subsequently converted into an investigation on 8.7.2015; that during course of investigation it transpired that petitioner Imran Taj Gichki has accumulated huge valuable properties, mentioned in para-9 of the Reference, in the names of his benamidars just to conceal the crime proceeds amassed through corruption and corrupt practices. The petitioner purchased his benami properties in the name of his close relatives i.e. brothers-in-law and sisters-in-law.

3. As per reference, following are the assets of the petitioner, beyond known source of his income. S. No. Description of Property Ostensible Owner name Year of purchase Property purchase value Current market value 1 Plot in Singhar Housing Gawadar Shahana Imran (wife) 2004 180,000 1,600,000 2 4 Acre land in Pasni in the name of his wife + plot in Singhar Housing Scheme Gwadar in the name of his wife Shahana Imran (wife) 2005 220,000 2,000,000 3 Plot in Singhar Housing Scheme Gawadar in the name of his wife Shahana Imran 2006 300,000 1,600,000 4 Plot in DHA Rawalpindi in the name of his wife Shahana Imran 2008 132,000 1,025,000

5. Plot in New Town Housing Scheme, Gawadar in the name of his wife+ Installment of DHA plot+Flat in Tehsil Murree District Rawalpindi+50 marllas land in Bani Gala, Islamaad + Plot No.E-300, New Town Housing Scheme Gwadar Shahana Imram (wife) Jameel Ahmed (brother-in-law) and Mehmoona Nasreen (mother late) 2009 14,831,000 45,900,000

6. Installment of DHA Plot+Construction Cost of house in Bani Galla Islamabad 2010 5,901,000 1,025,000

7. Installment of DHA plot+House No.102-B, Phase-II, Bahria Town, Islamabad+House No.29-E, Phase-V, Bahria Town, Islamabad+ Construction cost of house in Bani Galla Islamabad Ghazala Jabeen (Sister-in-Law) 2011 54,063,000 90,000,000 8 Plot No.22, Phase-V, Bahria Town, Islamabad+ Construction cost of house in Bani Galla, Islamabad Ghazala Jabeen (Sister-in-Law 2012 21,625,000 30,000,000

9. Construction cost of house in Bani Galla, Islamabad 2013 5,625,000 0

10. Value of Gold and Foreign Currency recovered from the house of accused during search 2015 12135724 12135724 Total value of case property 115,012,724 184,260,724 Liability of the accused (PKR) Purchased Price (PKR) Market Price (PKR) 115,012,724 184,260,724 Rent from illegal Assets House No.102-B, Bahria Town, Islamabad (as per statement of tenant). 3,000,000 3,000,000 Total Liability 117,812,724 187,060,724 Less: Saving (from salary) 2,451,588 2,451,588 Net Liability 115,361,136 184,609,136

4. According to the Reference, the evidence collected during investigation establish that the petitioner being holder of public office accumulated huge assets/properties to the tune of Rs.184,609,136/- beyond his known source of income in his name and benamidars. Thus, he has committed the offences of corruption and corrupt practices as envisaged in section 9(a)(v) of the National Accountability Ordinance, 1999 (NAO), punishable under section 10 of the NAO.

5. Learned counsel for the petitioner submitted that reference was filed by the Ex-Director General, NAB Balochistan, namely Major (R) Tariq Mehmood Malik, who was de-notified by the order of Hon'ble Supreme Court in Suo Motu case No.13 of 2016, therefore, the reference in question is of no legal value; that there are no reasonable ground to believe that the petitioner has committed an offence under sections 9 and 10 of the NAO, 1999; that the petitioner joined service as a gazetted officer in the year 1993 and he has never been proceeded against throughout his service, whether under civil, criminal or service laws; that the property values have been bloated to the maximum extent which are unsupported by the market value and this has been done to prima facie establish "disproportionateness" between source of income and property of the petitioner; that the liability assessed to the tune of Rs.184,609,136/- is against the facts; that the petitioner is innocent of allegations leveled and aspersions cast on the petitioner; that the petitioner himself surrendered before the trial Court so there is no probability of abscondance whatsoever; that the case against the petitioner is documentary in nature which is already in possession of the prosecution and there is no likelihood of tampering with record in this case and in such like cases, court favour the exercise of discretion in favour of accused persons; that the investigation of the case is completed and the petitioner is no more required by the prosecution for further investigation, therefore, he is entitled for concession of bail. The learned counsel relied upon the cases of Anwarul Haq Qureshi v. National Accountability Bureau and others (2008 SCMR 1135) + Aga Jehanzeb v. N.A.B and others (2005 SCMR 1666) + Arif Sharif v. Chairman NAB (2004 SCMR 1805) + Muhammad Irshad Khan v. Chairman NAB and others (2007 PCr.LJ 1957 Karachi + Brig. (R) Imtiaz Ahmad v. The State (PLD 2017 Lahore 23) + Khan Haroon Resikh v. The State and 2 others (PLD 2003 Lahore 517) + Abdul Aziz Khan Niazi v. The State (PLD 2003 SC 668) + Muhammad Nadeem Anwar and another v. NAB and others (PLD 2008 Supreme Court 645)) + Syed Qasim Shah v. The State (2009 SCMR 790) + Saeed Ahmed v. The State (1996 SCMR 1132) + Muhammad Saeed Mehdi v. The State and 2 others (2002 SCMR 282) and Ghani-ur-Rehman v. NAB and others (PLD 2011 Supreme Court 1144) .

6. On the other hand, learned DPG NAB has vehemently opposed the submissions raised by the learned counsel for the petitioner and submitted that NAB has uncovered more than enough material to prove beyond any reasonable doubt; that the petitioner has committed the offence of possessing assets beyond his known sources of income, and as such, he is not entitled for post-arrest bail. The learned DPG NAB relied upon the case titled Akhtar Ali Mahoto v. NAB {2004 MLD 2039} and unreported judgment of this Court passed in the case of Khalid Humayun v. NAB, C.P. No.760 of 2016.

7. We have considered the submissions raised by the learned counsel for the parties, perused the record and case law cited by them at the bar.

8. As per settled law, we have only made a tentative assessment of the material placed before us to pass an order at this stage, which shall not prejudice the case of either party at trial, which shall be decided on merit based on the evidence by the trial Court. From perusal of the Investigation Report (IR), it appears that the Investigating Officer mentioned the details of the properties which were purchased by the petitioner in the name of his associates (benamidars) including his wife, details whereof contained in para 5(c) and (d) of IR. As far the detail of the transactions as alleged in the name of Ch. Muhammad Ashraf, Ghazala Jabeen and Jameel Ahmed with details of the bank accounts, from where heavy transactions were made, are concerned contained in para 5 (h) of the IR which, prima facie, established the nexus of the petitioner with the properties mentioned in para supra. Moreover; one of the co-accused namely Jameel Ahmed has recorded his statement under section 164 Cr.P.C. which is also very pertinent at this stage, as the said witness has stated in detail about the role of the petitioner in this case.

9. As far as first submission of the learned counsel for the petitioner is concerned, admittedly, Major (R) Tariq Mehmood, Ex-Director General NAB Balochistan along with three others NAB Officers was declared not qualified to hold the respective post in NAB by the Hon'ble Supreme Court in Suo Motu Case No.13 of 2016 and they were de-notified, but what they have done during that tenure have neither quashed nor declared illegal by the Hon'ble apex Court, thus, of less consideration.

10. The precedents cited and relied upon by the learned counsel for the petitioner are of less assistance to him at this stage in view of the facts and circumstances of his particular case. His citations largely relates delay in conclusion of the trial, investigation with mala fides, the power of this Court to grant bail, that only a tentative assessment of evidence is required at the bail stage, what amounts to reasonable grounds and the impact of documentary evidence. As noted above, we are only making a tentative assessment of the material before the Court, that in this case witnesses as well as documentary evidence are involved and the Court is well aware of what the test is for "reasonable grounds" for the grant of bail.

11. In the case of Muhammad Hashim Babar v. The State (2010 SCMR 1697) the Hon'ble Supreme Court set out the ingredients of what were required to prove an assets beyond known source of income case under section 9(a)(v), NAO as under, at page 1704: "It is pertinent to mention here that in order to prove the case is the duty and obligation of the prosecution to prove the ingredients of the offence which are as follow:

(i) It must establish that the petitioner was holder of a public office. (ii) The nature and extent of the pecuniary resources of property which were found in his possession. (iii) it must be proved as to what were his known sources of income. (iv) it must prove, quite objectively, that such resources or property found in possession of the petitioner were disproportionate to his known sources of income. The aforesaid ingredients are proved then the offence as defined under section 9(a)(v) is complete, unless the petitioner is able to account for such resources or property. It is also settled proposition of law that mere possession of any pecuniary resources or property is by itself not an offence, but failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence meaning thereby that if a petitioner cannot explain, presumption under section 18(c) of the Ordinance that petitioner is guilty of corruption and corrupt practices is required to be drawn".

12. In our view, the analysis of the income and the existing assets of the petitioner were investigated by the NAB and tabulated as required in the case of Muhammad Hashim (supra), which prima facie make out a case of accumulation of assets beyond his known source of income with specification of the role on part of the petitioner, connect him to the offences as charged.

13. Furthermore, section 9(b) of the NAO lays down that all the offences under the Ordinance are non-bailable, thus bail cannot be allowed under section 497 Cr.P.C. to an accused facing the charges under the Ordinance. However, according to settled principle of law, the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution can exercise the powers available under section 497 Cr.P.C. and to grant bail to an accused for the offence(s) under the Ordinance in appropriate circumstances. The powers as conferred by Article 199 of the Constitution placed a discretion with the court, is to be exercised judiciously.

14. Under such circumstances, we are of the opinion that the evidence and the material available on the record, prima facie, connect the petitioner with the acts alleged, thus, no justification to allow the concession. Without discussing merits of the case further, as any observation at this stage would certainly affect the trial, we are not convinced with the grounds taken by the learned counsel for the petitioner for the grant of bail. Thus, in view of the above, the petition is dismissed. MH/102/Bal. Petition dismissed.