P L D 2017 Balochistan 89
Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar JJ
IMRAN GICHKI ---Petitioner
Versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through Director -General and
another ---Respondents
Constitutional Petition No.257 of 2017, decided on 16th June, 2017.
National Accountability Ordinance (XVIII of 1999) --
----S. 9(a)(iv) & (b)---Criminal Procedure Code (V of 1898), S. 497--- Constitution of Pakistan,
Art. 199---Constitutional petition ---Bail, refusal of ---Assets beyond known sources of income---
Petitioner was ex -Personal Staff Officer to the Chief Minister and he was arrested by National
Accountability Bureau on allegation of accumulation of assets beyond his known sources of
income ---Validity ---Analysis of income and existing as sets of petitioner were investigated and
tabulated by National Accountability Bureau which prima facie made out a case of accumulation
of assets beyond his known sources of income with specification of role on part of petitioner who
was connected to offenc es as charged ---All offences under National Accountability Ordinance,
1999 were non -bailable and bail could not be granted under S.497, Cr.P.C., to accused facing
charges under National Accountability Ordinance, 1999--- High Court, in exercise of jurisdicti on
under Art.199 of the Constitution, could exercise powers available under S.497, Cr.P.C., to grant
bail to an accused for offences under National Accountability Ordinance, 1999, in appropriate
circumstances ---Powers as conferred by Art.199 of the Constit ution placed a discretion with the
Court to be exercised judiciously ---Material available on record prima facie connected petitioner
with acts alleged, thus, there was no justification to allow concession to petitioner ---
Constitutional petition was dismiss ed in circumstances.
Anwarul Haq Qureshi v. National Accountability Bureau and others 2008 SCMR 1135;
Aga Jehanzeb v. NAB 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; Brig. (R) Imtiaz
Ahmad v. The State PLD 2017 Lah. 23; Khan Haroon Resikh v. The State and 2 others PLD
2003 Lah. 517; Abdul Aziz Khan Niazi v. The State PLD 2003 SC 668; Muhammad Nadeem
Anwar and another v. NAB and others PLD 2008 SC 645; Syed Qasim S hah 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; Ghani -ur-Rehman v NAB and others PLD 2011 SC 1144;
Akhtar Ali Mahoto v. NAB 2004 MLD 2039 and Muhammad Hashim Babar v. Th e State 2010
SCMR 1697 ref.
Sardar M. Latif Khan Khosa, Mustafa Abbasi, Nadir Ali Chalgari and Khursheed Anwar
Khosa for Petitioner.
Ch. Mumtaz Yousaf, DPG, NAB for Respondents.
Date of hearing: 30th May, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This or der 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 Shahana
Imram
(wife) 2009 14,831,000 45,900,000
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 Jameel
Ahmed
(brother -
in-law)
and
Mehmoona
Nasreen
(mother
late)
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 ot hers
(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
Investig ation 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 f acie, 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 witn ess 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 N AB 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 largel y 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 e vidence. 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 g rant 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 a lso
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 r ole 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 th e 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.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.