2023 P Cr (PLP)

MUHAMMAD HASHIM KHAN KAKAR, J.

Through this constitutional petition, the petitioner Jumma Khan seeks concession of bail before arrest in enquiry/investigation No.179541 initiated by the respondent (National Accountability Bureau Balochistan).

2. Brief facts out of which this petition arises are that the respondent initiated an inquiry against the petitioner upon a complaint, which was received on 27th June, 2019 by the NAB authorities, wherein it was alleged that the petitioner has been involved in excavating sand from Sui Nala, Dera Bugti without obtaining NOC from the concerned Deputy Commissioner, in violation of the provisions of Balochistan Mines and Minerals Rules, 2000. In such backdrop a call up notice was received by the petitioner on 29th January, 2021 under section 19 of N.A.O., 1999 for his appearance before the NAB authorities. According to the petitioner, though he has no concern with the above, however, due to serious threats given to him, he is apprehensive of his arrest at the hands of the officials of the respondent, hence the instant petition.

3. On service of notice, the respondent has opposed the petition by filing counter affidavit, in which the averments stated in the petition have been denied.

4. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner submits that the petitioner is innocent and apprehends his arrest at the hands of NAB authorities in aforesaid enquiry being initiated against him vide notice dated the 13th January, 2021, issued by the NAB authorities. He further submitted that the petitioner is a businessman by profession and is not holding any public office, as such, the NAB authorities have no jurisdiction to harass the petitioner on the complaint of his rivals in a false and fabricated case. While concluding his arguments, the learned counsel alleged that the Investigating Officer misbehaved and abused the petitioner by asking irrelevant and derogatory questions, which act of the Investigating Officer is against the provisions of Article 14 of the Constitution of Islamic Republic of Pakistan, 1973. Lastly he prayed that the petitioner may be rescued by protecting his respect and dignity by granting pre-arrest bail as he has no concern with the alleged offence.

5. Mr. Amin-ud-Din Bazai, learned Deputy Prosecutor General, NAB assisted by Mr. Jaffar Raza Khan, learned Special Prosecutors, NAB, while strongly opposing the instant petition, stated that though an inquiry has been initiated against the petitioner and call up notice under section 19 of the N.A.O., 1999 was issued to him for providing certain documents, however, arrest warrant has not been issued against him. According to them, the petitioner has been involved in excavating sand and 'bajri' from Sui Nala, Dera Bugti, without paying surface rent to the government.

6. We have heard learned counsel for the parties and also perused the available record, which reveals that the petitioner is authorized contractor of Mines and Minerals Department and he was authorized/permitted by the Department for mining of sand and 'bajri' over an area of 100 acres of land situated at Dera Bugti. To our humble view, it is too early to give any opinion, regarding collection of sand by the petitioner from any property/land belonging to the provincial government that too without any material collected by the NAB authorities. Obviously, all the pleas of the prosecution and defence agitating at bar are to be examined at final stage by the trial Court after recording evidence and forming of any such opinion before commencement of the trial is against the norms of criminal justice. Prima facie, it seems that the complainant while using the shoulders of NAB has made an attempt to convert a civil dispute into criminal proceedings.

7. It is also pertinent to mention here that the petitioner is a private person, holding no public office and the instant proceedings have been initiated against him on the basis of a private complaint, as such, the question of mala fide on the part of the complainant and possibility of false implication cannot be ruled out and the case of prosecution qua the guilt of the petitioner requires further probe. Even otherwise, the petitioner has appeared before the Investigating Officer and his physical custody is not required by the investigating agency. In view of above facts and circumstances, we are of the opinion that the petitioner has been able to make out the case for the concession of anticipatory bail. Accordingly, petition is allowed and ad-interim bail order dated 02.02.2021 is hereby confirmed.

8. Before parting with the case, we consider it proper to make a reference to the affidavit of petitioner which reads as under:

9. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner contended that it is a simple case of tax evasion and alleged violation of the Mining Rules, as such, the Investigating Officer was not justified to ask such derogatory questions while harassing and torturing the petitioner.

10. We have painfully observed in a number of cases where members of law enforcing agencies and Investigating Officers, who are charged with the duty to protect the citizens, have themselves perpetrated upon their ward acts of inhuman torture. At this juncture a question arises as to whether such officers can be entrusted the sacred duties of investigation, who have no respect for humanity.

11. Undoubtedly, the NAB officials are dealing with the persons, involved in corruption or corrupt practices, who may be convicted by a competent Court of law after conclusion of the trial, but it does not allow anybody to disgrace, abuse or torture any accused during the course of investigation. In this regard, reference can be made to Article 14 of the Constitution which reads as under: "

14. Inviolability of dignity of man, etc.

(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence."

12. The above provision of the Constitution, regarding dignity of man in Part II, Chapter I of the Constitution is the only guarantee, which is not subject to law but is an unqualified guarantee. This fundamental right of any citizen whenever violated and complained of, the Court must step in to and investigate on the constitutional jurisdiction and pass such order as may be found just, legal and equitable. The right to live is not confined to mere living but it means a meaningful life, which can be enjoyed with dignity. (PLD 1994 SC 693). Admittedly, no person in whatever capacity is allowed to detract, defame or disgrace any other person, thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life in more particularly the officials of the NAB, who are entrusted the sacred duty to investigate white collar crimes. The inhuman treatment meted out to the NAB victim violates not only the Convention Against Torture and other cruel, inhuman or degrading treatment or punishment rectified by the government of Pakistan, but also Article 14(1) of the Constitution and directions issued time and again by the superior courts of the country. Needless to observe that the Hon'ble Chief Justice of Pakistan has also admonished the National Accountability Bureau on being informed that a citizen in its custody was made to bark like a dog and crawl on the floor, in addition to being subjected to the standard procedures used during interrogation through violence. It is alarming to observe that the right to dignity of person is the only right of Pakistani citizens that is not subject to the law and is perhaps most commonly abused, particularly by the State functionaries.

13. The contents of affidavit, annexed with the petition, which has gone un-rebutted, would show that either the Investigating Officer, namely Mr. Ejaz Ali Mahar with mens rea, has asked the aforementioned irrelevant and derogatory questions in order to disgrace and torture the petitioner or he is not acquainted with the manner and procedure, in which an inquiry or an investigation should be conducted. He is directed to be careful in future. Copy of this judgment be sent to the Director-General NAB Balochistan to look into the matter and take necessary steps to ensure fair investigation of the instant case through an independent, honest and competent officer. SA/145/Bal. Bail granted.