Mohammad Shakeel (Petitioner) VS Abdul Fateh and Ors (Respondent)

IN THE HIGH COURT OF SINDH' KARACHI

Before:

Mr. Justice Ahn.recl Ali M. Shaikh, C J' Mr, Justice Nlohammad l(arim Kl.ran Agha, J C.P. No.D-2633 of 2016

Petitioner Muhammad Shakeel Ahmed hhatr S/o Abdul Raslreed Khan Through Mr. Saadat Hasan, Advocate

Respondents National Accountability Bureau & others tl]rough Mr', Mr'rhammad Altai, Special Prosecutor, NAB.

Date of hearing: 08 09.2017.

Date of Order 18.09.2017

ORDER

Mohammad Karim Khan Agha' J:- The petitioner (Muhammad Shal<eel Ahmed I(han) through the abovc petition has praYed as under:

"lt is therefore, prayed that this Hon'bie Court mal be pleasect to issue writ, order directions against the respondents that he sholtld be brought belorc this Hon'ble Coltrt to satisfy itself to the lcgalitl and detention of the detenue as to mandatoln lequirements of law and in ctise no sLtffit'it'tlt ground of arrest substallce is providecl to thc detenue, his dc-tention may be tlcclarecl as illr:gtrl and his confinement as wrongful and order- fbl his immediate re lease maY be Passed.

'lh.1t i[ ma-\' be held that in thc arbsence ol valicl autholity \\,ith the Ilcspondellt No 2 e1s the authorizertiol.r of investigation / enquirl agaitlst the detenr-te, the pllrported ctlquiry orcicr No.242O05 / FCIW/ CO-B / NAB-Sinclh / 2014-t( 2O71, dated 17.06.2014 is illegal ar.rd abi-ir.ritio, void antl the same tobe declared null and void at1d subsequent proceedings based ot-t this should be deciared nullity in the eyes of law.

Orclcr lirr relcttse ol the detcllLle oll tlle 'ialllc suretv on [LIr]]ishil.ig ol ll'esh baii lloncl, il deertt pr-opc'r, bl the police statiorl NAB rvhetc he lrirs

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[teen l<e ol br r'esprrrrclents.

That pending petition this Hon'ble Court may be pleased to release the detenue on furnishing surety to the satisfaction of this Hon'ble Court or pass any other order which may be deemed fit and proper in the circumstances of the case."

2.Briefly statecl tlre facts of this case are tllat tllc petitioner was citecl as Accused No.2 itl National i Accotrntabilitv Bureau (NAB) Reference No'13 of 2O14 State iVs. Zafar All Zuberi and others dated SOth September 2014 whereby the petitioner along with co-accused were alleged to have misapproprraled lembezzled milliol.rs ol rLlpees ol Custom Collection collected at Air Freight Unit (AFU) Booth of NBP Karachi durir1g the.years 2011 to 2013 which amounted to acts of corruption and corrupt pracLices utrder the National Accountability Ordinance, 1999 (NAO) hence the NAB Iilccl the aforesaid Reference against the petitioner and other co acoused. The petitioner \,vas arrested in this l{efereucc alld was later released on post arrest bail. Howcvct'. altet' attending the coLtrt proceedings in the aforesaid reterettcr: hc rvars again tu rcsteil b1' tlrc NAt3 irt Reference No'48 of 2Ol5 Stat€ V Muzzafar Ali Zuberi dated 19.11.2015.

3.Learned counsel for the petitioner mililll) contcl)(lc(l that Relerence No.4B of 2015 was rdentical to earliel Iilccl Reference No.13 ol 2o14, as such his c.rse amoLlntcd to double jeopardy under Articlc 13 of the ConstitLrtion ol' Pakistan, 1973 and as such the latter Rei'ercncc No.4u ol 2015 should be quashed and thc petitioner shottld bc releascd ll'om cllstod\. Even il thc Rcferettcc Nr-r.'lE rrl 20 llr rvzrs r.rot quasi-red in alternativc' the petitiorrcr uils etttille(l t(r post arrest bail sincc Ire rvas cotrpletcl-y il)ltocel)t atrcl lltcrc lvas rtr.r cvidcnce itgainst liittt.

+. On the other haucl, leatncci Spc'cial l)roseculor, NAB conten(led that it was not a case ol clottble jeoparcil its lltc: latter Reference No.48 of 2015 was clillerent lrolr thc Reference No.13 oI 2014 and as sltch there was no gror-tn<l lbr qll.rshment. With rcgal (1 to the grant ol bail he slrbnlilted {y

that therc \,vas mol'c than sulTicient matcrial on rccorcl lcr connect the petitiol)er to the oflc.nce for u,hich he has becn charged Jn Rel'erence No.48 of 2015 and :Ls such both thc application lbr quashrrent ancl post arrest bail should be dismissed. [n support of his contentions he placed reliance o1.l the case of Ms. Farhana Muzaffar vs. National Accountability Bureau and 4 others (2017 P Cr. L J l) and Order dated loth June 2OL5 (unreported) passed by the Hon'ble Supreme Court of Pakistan in Civil Petition Nos.298-K, 3O9-K, 3rO-K and 315-K of 2015 (Noor Jaharr Mangi and 3 others vs. Federation of Pakistan through Secretary, Ministry of Interior & anothet (the Orderl).

5.We have considered the arguments ol learned coLtnsel for the parties, gone through the relevant record alrd considered the relevant case law.

6.In terms of quashment of the reference 48/2015 on the ground of double jeopardy it would be of assistance to set olrt Article 13 oI the Constitlltion of Pakistan, 1973 which provides as under:-

" 13. Protection against double punishment dtld sell- irtcrirLitutiot L.

No person -

(a)shall be prosecuted or punlshed for the same offence more than once; or (boLcl added)

(b)shctll, uthert accused oJ <tn oJJbnce, be compelled to be a u-)itness against himseLf. "

7.We havc comparcd tl.le t\\,o re fere n(:es (1 3 of 20 ] '1 alrl 48 oI 201 5) r,vhere it u,oLllcl appear that a si]-Ilil.tr moclLrs oper-andi was uscd ll! the petitioner u'iti: six otlrct (o accrtsed citecl ir.r Relercnce No.13 o[ 20]4 ill ctttlrtzzlitrg hundrecis of millions of t-u1tccs, l-rorvevcr Relcrent c No. l,l o1 20tlrclirlcs Lo tlrc pctiud:oll to 20 l.l Ittti llt'lttttttt Ntr'1fj of 2015 r(]a1cs to the periocl oi 2009 to 20l0 (seL- rcft'rcn(c .+8/20 15 arncl S.161 st.ttement ol Muhatnlrecl llastrlr, []rtrnr'lr Marnger of NBP Airport 13riL|rch) and that botl.r releretrccs 1,,crL' )P)

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authorized on the basis of sepuuate complaints received after each other and the references were based on separate investigations which disclosed that in each case the petitioner along with co-accused through the commission of corrupt practices had embezzled hundreds of millions of rupees and had caused a massive loss to the State Exchequer' ln reference 13/ 14 there are 7 accused and the loss was over RS one billion, whilst in reference 48/ 15 there are 4 accused atrd the loss is approximately RS 500 million making a combincrl totrl of approx RS"1 .5 billion as total loss to the exchoqrrer'

8.Thus, in our view, this is not a case of double jeoptrrclv ancl Article 13 of the Constitution is not .rttracted slnce the transaction in each reference relates to different linancial perlods. ln this regard we place reliance on the Order dated 10-06 2015 passed by the Supreme Court as mentioned above which in a similar plea held as under:

"There is no question of double jcopardy' alleged by the counsel for the petitionets, on the basis of Reference No.69 of 2OO7 pending before the Accountability Court, Hyderabad, as the same pertains to thc transaction conductcd during thc Financial Ycar' 2OO2-O3 which ended in June 2OO3, whereas the present Refereuce pertains to the fraud and embezzlement :rllegedly committed by the petitioners in July 2OO3". (bolcl aclclcd)

9.Thus we find no grounds to quash Reference No.48 of 2015 since this is not a case of double jeopardy and both the aloresaid references car proceed in accordance with lau.

10.With regard to post alrest bail \'c obset!c lroll Relerence No.48 of 2015 tllat thc pclitiorlcr ttlorrg uitlt Muzallar Ali Zr-rberi was onc ol llte rt:ritt iLccttseci irr tlris Relerence who misused his aLtthoritv ancl c-aused massivc loss to thc governl1rcr-r1 cxchc'quer flll-rnillg illto nciu-i\ ltalI a billion rupees. He lras been giverl tr sllecific rolc itt tlrc lelerence at Para 5 whicit reacls as ltuclel; vy

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"5.'l1.rat tl.lc' investigation fllrtlIeI revciils tlliit tlre a..r""O No.2. Muhammad Shakeel l(arachi Ahmed -1ir"t,',.i.r,,.g. AFU NBP Airpolt Brarrclr Xttarr, "zoog ana 20 1o hirs bectr Ibt-rtrcl i" u.". i e' i"toiu.-a i't illcg.l rl^rririnq "f vrrtntrs recnttnts (;o\'1' ol' i,,ri..i". ol Ctr"ston.rs, Excise Departtncnt of accused are Si,raf-t ,',"a o1l-rers. The signatures He illegally took .i"" i""ia on said vouchers'collection' of rupees from cash Vtrt iorts -irii""" .;,,; i".egiit.r" anci clate wise r-cconciliiitiorl o1' dzriii, collectlon register \\'ith cJciit-inpi rcgistc'r's account Nos L004 5 and l0O3 6 sllou rtrl ;;i;;i"g of entries The accused Ali with the ;;;"i;;". of accused No' 1 Muzafar zuberi i["";il deptoyed accused No'3 waqas Ahmed iiii" i"a i"cu"ed No'4 Asif siddique private "".""t f", daily banking operation' for thc il;;;. of misaPPropriation in daily collections".

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11.NAB has provicled LIS \'\'illl sLlllicicllt rt-latcrial Lo n hich cattsccl ir the petitioncr witil tlle con.rnissiot.r oI offerrce Ioss ol hut]clrcrls tnillions ol rLtpecs to th( slale cxclrr:t1ucr through S.16l statements ol Muhammad llassittl' IIasec:ll rtt'

Rehman, Abu SLlfyan ancl Allauclclin arlcl (locLllrcnti'trl ol excise material i.n the shape of clebit ancl creclil vouchers accoLlnts ol and taxation fee of the Government oI Sit.rdh and wltich sigtl:ttLtrt' custorns coliection sigr-recl by thc petitior.rel-' lrail trir the petitioner has not dcnicd, which the pttitiotrc'r lawiul authoritl'to sigll '1ncl amounts to !r nrisLlsc ol '1Lrl1.loritl wl-tich v,as one of the nrain lactols rvhicli cnrtlllecl thc scalll to

take placc. ln or'tr viet tlle pctitiollcr tttlcl co ltc'cLtsccl Mltzaffar Ali Zr-rberi are the rt erit.t accused itl both reletcttccs

12.Furthermore in tlle case of Ms' Farhana Muzaffar vs' (Mr-rzaflat Ali NAB (2017 P Cr lJ 1) tl')e other rnain accused ilr Zuberi), lr'ho stands oll a similar iooting to tl-re petitiorrcr

Reference No.48 of 2015 had his bail recalled in Reference 1.312014 and his application for Post arrest bail ln respect of tltis court of reference 4Al2}l1o dlsmissed by another DB in the following terms:-

"A[tel corlsirlt'rillg thc (lLlcstiol-] ol lil\\ lls \rcll its thc inct-ilnirlitlillg lritterilrl proclur-ccl l)\ tlrc l'() ' iir"r" "a" ,r, 1q111;1111ir)l1e gtottl-itls t') l)cii(\'('lliiiL I )>t

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the accLrscd is not involvcd ill thc offen( c congnizable rtnder the NAB Orditlance, tllerelbrc the earliel bail granted to the accttsccl is lvithdrawn (i.e. in refereucc l3/ I a): (h(' applicatior.r fi1ed by NAB seeking cancc'llatiotr ol bail to Zuberi is accordinglv allowed; and appllcation filed by the Petitioner seeking bail of the accused Zuberi in subsequent Reference No.48/2O15 is dismissed, while the main petition is also dismissed being devoid of merits. The surety furnis)red lor the first bail rnttt' be dischargecl and returned orI Pl'ol)er vctificalir,rtt and identification."(bold adderl)

13.The otl.rer issues raisecl by the l)etitioner in his pleadings have aiready bceu dealt \\'ith by arlother DivisiotttLl Bench of this Court in the case of Ms. Farhana Muzaffar (Supra) which we are it.t full agreemenL r'vith and in any evenl are binding on us by vil'tue oI the case of Multiline Association V Ardeshir CowasJee (PLD 1995 SC 423)

11.As such \ve also iincl that tllcre is prima fitcic srLfilcient matelial on record to connect the peLitione[ to the ollclicc li)r rvhich he 1.ras been charged in Relerencc No.;18 of 201 5 illl(l as; such his appiication for post arrest lrtLil is rlrsrrrissid 'l'lrL' concerned trial court(s) hoivcver are (lircclc(l to colttlllcte tllc trial ()1'both rcl'crences uithirr '1 mo ths ol thc (L.ltc ol lhi5 orcler- a cop,y ol ivlriclr shall bc scllt to lhc ctlllcctttccl triiLl coult(s) for compllanr:c'.

15.It goes without saying that with regard to the post alrest bail aspect of the petition we have only made a tentative assessment of the material placed before us and that this order shall have no effect on the trial proceedings which shall be decided on merits by the trial court(s) based on the evidence before it/ them

JUD D

CHIDF JU c