2023 P Cr. L J 78
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
JUMA KHAN---Petitioner
Versus
DIRECTOR GENERAL NATIONAL ACCOUNTABILITY BUREAU
BALOCHISTAN, QUETTA and another ---Respondents
Constitutional Petition No. 122 of 2021, decided on 8th April, 2021.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 9 ---Constitution of Pakistan, Art. 199 --- Corruption and corrupt practices ---Pre -arrest
bail, grant of ---Private person--- Scope ---Accused sought concession of pre-arrest bail in an
enquiry/investigation initiated by the National Accountability Bureau (NAB) ---Accused was
alleged to have excavated sand without authorization/permission ---Held; accused was an
authorized contractor of Mines and Minerals Department a nd he was authorized/permitted by
the Department for mining of sand and bajri over an area of 100 acres of land--- Pleas of
prosecution and defence agitated at bar were to be examined at final stage by the Trial Court after recording of evidence and forming of such an opinion before commencement of trial
was against the norms of criminal justice --- Accused was a private person holding no public
office and the proceedings had been initiated against him on the basis of a private complaint, as such, the questio n of mala fide on the part of complainant and possibility of false
implication could not be ruled out and the case of prosecution qua the guilt of the accused required further probe ---Accused had appeared before the Investigating Officer and his
physical c ustody was not required by the Investigating Officer ---Petition for grant of pre -
arrest bail was allowed.
(b) Constitution of Pakistan ---
----Art. 14---National Accountability Ordinance (XVIII of 1999), S. 9---Inviolability of dignity of man---Scope ---Arti cle 14 of the Constitution is the only guarantee which is not
subject to law but is an unqualified guarantee---Said fundamental right of any citizen whenever violated and complained of, the Court must step into and investigate on the constitutional jurisdi ction and pass such order as may be found just, legal and equitable ---
Right to live is not confined to mere living but it means a meaningful life, which can be enjoyed with dignity--- 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 particular the officials of the NAB, who are entrusted the sacred duty to investigate white collar crimes ---Inhuman treatment meted out to the NAB
victim violates not only the Convention Against Torture and other cruel, inhuman or
degrading treatment or punishment ratified by the Government of Pakistan, but also Art. 14
of the Constitution and directions issued time and again by the superior courts of the country.
PLD 1994 SC 693 ref.
Muhammad Riaz Ahmed for Petitioner.
Amin -ud-Din Bazai, Deputy Prosecutor General, NAB assisted by Jaffar Raza,
Special Prosecutor, NAB for Respondents.
Date of hearing: 31st March, 2021.
JUDGMENT
MUHAMMAD H ASHIM 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 tha t 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, De ra 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 authoriz ed/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 a lso 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 complaina nt 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 w here 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 conclu sion 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 m an, 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 comp lained 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 wit h 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 rect ified 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 Acco untability 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 r ight
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- rebut ted,
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.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.