Abdul Ghafoor Buriro (Petitioner) VS Fed. of Pakistan and Ors (Respondent)

IN THE HIGH COURT OF SINDH AT I(ARACHI

Before: NIr, Justice Ahmed Ali M Shaikh.

Mr, Justice Mohammed Karim Khan Agha

Petitloners along wlth CPD.No's.

1.CP No.D-3985 ol 2Ol7 Ghazatfar AIi v. Chairman NAB & others.

2.CP Na.D-41O7 of 2017 Nadir Hussain v Federation of Pakistan &, others.

3.CP No.D-4112 ol 2017 Pe1aiz Ahmed Solangi v Federation of Pakistan & others.

4.CP No.D-4106 of 2Ol7 Ali Razaque Panhwar & others v' Chairman NAB & others.

5.CP No.D-3994 of 2017 Abdul Ghafoor v Federation ol Pakistan {b others.

6.CP No.D-11938 of 2017 Muhammad Farooq v Federation of Pakismn ;"6 ,)';lcrs.

Counsel for the Petitioners.

1.Mr. Abdul Sattar Luhran, Advocate alongrvith petitioner Ghazanlar Ali Panwhar in CP No D-3985/2017 2. Mr. Ghulam Shabeer Shar, Advocate aiongwith Petitioner' Nadir Hussain in CP No.D-4107l2017.

3- Petitioner Perwaiz Ahmed Solangi Present in person in CP No.D-4122/2017.

+. fvf.. aUa"t'Sattar Luhran, Advocate alongwith petltioners A1i Razaque, Shamsuddin and lrfan Ahmed in CP No D- 4to6l2ol7.

5.Petitoner Abdul GhaJoor Buriro present in person in CP No.D-399+ 12017

6.Mr. Mumiaz M Gopang, Advocate alongwith petilioner Muhammad Farooq Buriro in CP No D-3988/2017 Counsel for the ResPondents

Mr. Muhammad Zubair Malik, Special Prosecutor, NAB alon$vjth I.O. Qasim Ghurchani

Date of hearing; 09.Oa.2Ol7

Date of order: 09.OA.2O|7

ORDER

Mohamm ed Karim Khan AEha . J. The above mentioned petitioners have all been granted ad inlerim pre arrest bail by lhis Court through various dilferent orders in connectioir rvith alJcgcd acts of corruption committed by thcm fallin8 witi-iin the anlbil 'rl' the National Accountability Ordinance 1999 (NAO) in connr-'r'ti')ir "t"y

with various infrastructure schemes/proiects which were carried out in TMA Bhiria Naushero Feroz rvhich all the petitioners were in one way or another associated with and are currentlv under investigation by the National Accountability Bureau{NAB), By thls composite order we propose to dispose of all the above mentioned petitions Iiled by the petitioners named above for confirmation of their pre arrest bail.

2.As mentioned above all the petitioners have been accused of comrption and corrupt practices under the NAO and are currently being investigated by the NAB in respecr of such allegarions. This Court granted a.ll the petitioners ad interim pre arrest bail through various different orders after they received call up notices lrom the NAB in connection with an investigation against Bashir Ahmed Lashari (Ex TMO) Saeed Hussain Manghi (Ex TO infrastructure), Waheed Aki Lashari (Ex TO Infrastructure) of TMA Bhiria Districr Naushero and others

3.Ail the learned counsel for the petitioners contended thai they were entitled to the confirmation of their pre arrest bail as they were innocent of all allegations against them and that in an\, event their individual liability as worked out by NAB was veiy minor in nature and that the investigations had been malalideiy started against them by NAB in order to pressurize them into entering into plea bargains.

4.On the otler hand special prosecutor for the NAB opposed the grant of bail and contended that there was sufficient material on record to connect each of the p€titioners to an offense under the NAO, that there had been no malafide on the part of NAB and a reference against all the petitioners would shortly be filed in connection with their acts of corruption. Learned counsel for the w

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NAB however conceded that the personal liability of each of the petitioners as worked out by NAB ranged from approx. RS 20,000 lo RS 80,000

5.We have heard learned counsel for the petitioners, Special Prosecutor Ior the NAB and perused the record

6.It is an admitted position that no reference has yet been filed, that most of the petitioners it appears are low level contractors whose personal liability is very minor in nature, that the petitioners are no longer required for investigation and much of the evidence is in documentary form and is in NAB's possession so it cannot be interfered with by the petitioners.

7.Although there appears to be no malafide on the part of NAB we acting in our discretionary constitutional jurisdiction are not inclined to recall the ad interim pre arrest bail granted to the petitioners when the personat liability of each petitioner is of such a minor nature keeping io view that NAB'S primary objective is to investigate mega corruption cases and that the amount of surety for ad interim bail in each case is above the personal liability of each petitioner (bail has been granted to each petitioner from between 2 to 5 lacs). NAB had already been cautioned by this Court in connection with this Court confirming pre arest bail in such low value cases even in the absence of malafide in the following terms in the unreported case of Javed AII V Chalrman NAB attd otbers (CP.D 187212016) dated 31-03- '2017 (in which one of us Mohammed Karim Khan Agha J was a member) at Pa'ra's 84-86 which are reproduced as under for ease ol reference:

'84 We further express our deep dissatisfaction and grave concern that cases of this nature involving relatively pett] amounts contiaue to be filed as teferencea by the NAR' By \q

+ s Amjad Hussain's case (Supra) NAB'S SOP on pecuniary jurisdiction was made a judicial order' As per the iearned Prosecutor General of NAB that SOP came into ef{ect on 01- 01-2016 (and according to him the SOP was being strictly complied with after this date) Amiad llussail'a ca8e (Supra) was decided on 27 -04-2016. The SOP/judicial order in effect limited NAB to not filing references below RS 100 M (10 crore) except in exception circumstances as set out in the SOP/Judicial order. Yet we find that the instant reference 07 12016 has been filed before the Accountability Court Sukkur on 28-10-2016 (10 months after the date when the SOP became effective and 6 months after the Amjad Hussain's case (Supra) whereby the SOP was converted into a judicial order). In the instant reference in total the loss to the national exchequer was approx.2 7 crores i e about 25% of the aaount set out in the SOP and judicial order (divided between approximately 24 persons) with individual liability in some cases being as Iow as 2 lacs 77,1OQ, 1 lac 1 1,000' 4 lacs 52,O00, 8 lacs 99,OOO, 5 lacs 54,000, 2 lacs 81,000, 6 lacs 45,oOO etc. It is difficult to see how Prima facie such amounts fall within the pecuniary jurisdiction of the NAB when the primary mandate of NAB as set out in the Supreme court case of Asfandyar Wsli Khan (PLD 2O01 SC 607)' and later High Cou cases of Rauf Bux Kadti (MLD 2OO3 777) and Amjad Hussain (Supra) was held to be to deal.with large scale/mega corruption cases and was recently re enforced by NAB'S own SoP which was made a judicial order in Amjad Ilussain'scase (Supra). The Honltrle Supreme Court has even recently observed by order dated 24-10-2016 in Suo Moto Case No.17 oI 2016 (unreported) that tbe NAo should only be used ln cases of mega scams rather than petty cases. The aforementioned order in material part observeLl as under:

"This Court on O2.O9.2O16, during he aring of Civil No.82-K of 2O15, qbuse Appe al ced uhile co ft pettu matters in terms of Section 9 of the National Accountability Ordinance, 1999 {hereinafter referred to as the Ordlnance)' The ordlnance was primarily legislate d to counter the casea of mega scandals and ilitiate P roceediogs against the accused Persons who are involved in scandals of

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mega corruption and corrupt practices." (bold, italics and underlining added)

85.It is true that the consideration of PB may be taken into account but in our view this aspect appears to have been misunderstood/misinterpreted by the NAB. Yes, we agree that PB is a relevant factor in deciding whether or not to file a reference but in our view lt is only a secondary factor llnked to the large scale corruptlon element or if the amount luvolved falls slightly under the RSIOoM pecuniary j urlsdietion qnd in ang eaent resort ':o PB be tn the natlona,l lnterest.. One of the intentions ir') ''r'lst our view of the NAO was to recover ill-gotten gains through Voluntary Return or PB but this was in our view relatable to large scale amounts and not to proceed against persons who owed RS10 or 20 lacs with the hope that they would enter into voluntary return or PB before trial was fully alluded to in Para 28 and 30 in terms oI PB in the national interest in Rauf Bux Kadti's case (Supra) where recoveries of PB of minor amounts of 10 to 20 lacs ie unlikely to be in the natlonal intcr€st. In our view a case such as the current one should perhaps have been transferred to another investigating agency at the inquiry stage. In this case however slnce thc reference ls at an advanced stage and lleariug a declslon by the AccouDtabillty Court we are trot incllned to lnterfere with the conduct of the refererce before the accouatablllty court as it would in our vlew at thls belated atage achleve no useful purpose although under the circumstances we find it both troubling and painful to decline pre arrest bail in NAB cases where such minor amounts are involved which pursuit prima facie appcars to be contrary to the primary object of the NAO which is for the NAB to pursue mega corruption cases.

86.However, it is made clear that if such relatively minor matters in terms of value falling well below NAB's SOP and Judicial order on pecuniary jurisdiction as set out in Amjad Hussaia's case (Supra) couthue to form part oI NAB references this Court may well consider striking down the salne (or refer the references to other courts as per Para 32 of the Rauf Bux Kadrl case (Supra)) on th€ basis that as vt

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indicated above such cases are against the letter, spirit, purpose and intent of the NAO, t}1e above cited judgments including that of the Supreme Court in Asfaudyar wali Khan case (Supra), this Court in Rauf Bux Kadrl's case (Supra) and the ADjad Hussaln case (Supra) and as the Supreme Court has very recently indicated above the flllng ( of auch references may amount to a mlsuse of authority and as such llay be struck down by the court acting in its constitutional jurisdiction to ensure that the law is neither misused or abused, Even the concept of seemingly attempting to tie up accused in relatively low value cases with prima facie the main intention appearing to be to squeeze a voluntary return or PB out of them with the threat of trial hanging over their head otherwise may, dependilg on the partlcular facta ard qlrcumstances of the case, in future even render such cognlzance as potentially malafide and thus bring the institution into disrepute. Even otherwise it is the duty of the court to do complete justice in its constitutional discretionary judsdiction which may potentially allow it in such cases to consider pressing into service the principles laid down in Shamralz Khan V State (2000 SCMR 157) (rather than keeping persons locked up in jail where relatively minor amounts are involved in NAB cases) as was recently done by a Divisional Bench of this Court in cPD 5122/2016 Athar Alt Abbasl v state . (unreported) dated 24-Ol-2O17 (although t]lat case concerned post arrest bail) since after all the people expect justice and fair play from both the prosecuting authority in terms of complying with their primary mandate as set out under the law and the courts especially when a person's liberty is at stake, Indeed, as was held in the recent Supreme Court case of Zlagham Ashraf V State (2016 SCMR 18) when considering the issue of granting or refusing an accused bail such matters must not be taken lightly but rather cautiously as a person's liberty is at stake-.

8.In addition in our view it would serve no useful purpose nl recailing the petitioner's ad interim pre arrest bail and sending them to jail since in our view almost certainly they would be

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granted post arrest bail by this court due to the rela vely minor amounts involved in a NAB case.

9.Thus, for all the above reasons, and in particular the relatively petty amount of liability of each of the petitioners as

a determined b.y NAB in respect of thet alleged involvement in

is corn:ption bearing in mind that the primary objective of the NAO caused a to investigate and prosecute mega corruption cases which huge loss to the exchequer or gave a huge benelit to an accused as

opposed to relatively petty matters, the ad interim pre arrest bail

granted to each of the above mentioned petitioners through the various orders ol this court are hereby conlirmed on the same terms and conditions

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Chief rT