2015 Y L R 666
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Kamran Khan Mulakhail, J
ALI MUHAMMAD BALOCH and others ---Petitioners
Versus
The STATE through D.P.G. NAB and others ---Respondents
Constitution Petitions Nos.501 and 504 of 2014, decided on 12th January, 2015.
(a) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(c) & 31 -B---Criminal Procedure Code (V of 1898), Ss.63, 156 & 403---Constitution of
Pakistan, Art.13---Closure of investigation--- Reinitiation of investigation ---Not double
jeopardy ---Closure of investigation, would be considered as discharge from investigation; and no
clog could be put on the powers of the prosecution agency to reinitiate the investigation---
Reinitiation of investigation, in no way could be termed as double jeopardy, particularly, when
neither accused were prosecuted nor any charge was framed against them.
Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Tariq Javed Khan
v. The State PLD 2002 Lah. 607 ref.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 498---Pre -arrest bail and post arrest bail ---Principles ---Pre -arrest bail was an
extraordinary relief, the scope whereof was narrow as compared to the post -arrest bail ---
Principles for grant of pre -arrest bail and post -arrest bail were altogether different in nature---
Court, in the matter of pre -arrest bail, was supposed to examine, as to whether accused had
proved mala fide on the part of the complainant or prosecution, or his false involvem ent was
with some ulterior motive ---Pre -arrest bail could not be used as a substitute, or as an alternative
for post -arrest bail.
The State v. Haji Kabeer Khan PLD 2005 SC 364 and Rana Muhammad Arshad v.
Muhammad Rafique PLD 2009 SC 427 ref.
H. Shakil Ahmed for Petitioners (in Constitutional Petition No.501 of 2014).
Muhammad Afzal and Amir Zaman Jogezai, Special Prosecutors NAB for Respondents
(in Constitutional Petition No.501 of 2014).
Baz Muhammad Kakar for Petitioners (in Constitutiona l Petition No.504 of 2014).
Muhammad Afzal, Special Prosecutor NAB for Respondents (in Constitutional Petition
No.504 of 2014).
Dates of hearing: 18th and 22nd December, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This common judgment shall
dispose of the Constitutional Petitions Nos. 501 and 504 of 2014 filed under Article 199 of the
Constitution of the Islamic Republic of Pakistan ("the Constitution") as both these petitions are
arising out of Reference No.07 of 2014 filed by the National Accountability Bureau (NAB)
under section 18(g) read with section 24(b) of the National Accountability Ordinance, 1999
("NAO").
In both these petitions the petitioners have sought a similar relief. In addition to grant of
pre-arrest bail, the main re lief sought by them is as under:--
"To declare that the actions of the respondent No.2 are illegal and without legal
justification having no power to re -open the investigation/inquiry that too after a considerable
period of over 11 years which amounts t o double jeopardy and is contrary to the fundamental
rights as enshrined within the Constitution."
2. The relevant facts of the case are that the Government of Balochistan acquired a piece of
land for construction of overhead bridge over the Railway trac k to connect Zarghoon and Sariab
Roads Quetta, to be constructed by the Quetta Development Authority ("QDA"). A piece of land
(hereinafter referred to as "the said land") measuring 38000 sq.ft. was left unutilized and handed
over to the Quetta Municipal Corporation (QMC) for maintenance only. One Mr. Maqbool
Ahmed ("the Mayor") was elected the Mayor of the QMC in the year 1987, when the said land
was allotted to one Mr. Sultan Ahmed ("the allottee") and the Mayor executed a lease deed dated
6-5-1991, in his favour for period of 30 years. Subsequently, the lease agreement was cancelled
by the Administrator QMC. On 14- 1-1997, an application was filed for allotment of said land on
behalf of the allottee to the then Chief Minister Balochistan ("the C.M"). On rec ommendation of
the C.M, the proposal was placed before the governing body of the QDA, but the same was
rejected on the strength that the said land is reserved for the construction of second phase of the
bridge. On 13- 6-2003 again an application was submitt ed before the then C.M. with
recommendation to permit the allottee to deposit the cost of the land according to the valuation
assessed in the year 1997. In pursuance of the C.M's recommendation, the offer letter dated 18- 9-
2004 was issued to the allottee. The matter was still pending for final approval of the QDA's
governing body, when Mr. Maqbool Ahmed was elected as City District Nazim, whereafter he
also assumed the charge of the Chairman QDA. In first meeting of the governing body, he
confirmed the reco mmendation of the C.M. and approved the proposal of sale of the said land in
favour of the allottee, in consequence whereof, the sale agreement dated 26- 4-2007 was executed
and the said land was sold out to him against the payment of Rs.8.00 million. The l egal heirs of
the previous owner of the said land filed a Constitutional Petition bearing No.332 of 2012 before
this Court, wherein the allottee along with the Mayor and the subsequent vendees of the said land
were arrayed as respondents, and cancellation of sale agreement was sought within the meaning
of section 113 of the Quetta Development Authority Ordinance, 1978 (the Ordinance, 1978),
with prayer that the left over land should be restored in favour of the previous owner instead of
selling to anyone el se. The petition was partly accepted vide judgment dated 20- 8-2014 and the
sale agreement was cancelled, however, the claim in respect of restoration of possession in
favour of previous owner was turned down.
3. Mr. H. Shakil Ahmed, the learned counsel f or the petitioner in C.P. No.501 of 2014
stated that the petitioner Mr. Ali Muhammad was neither posted in the QMC when the lease
agreement dated 6 -5-1991 was executed nor he was posted in the QDA when the sale agreement
dated 26- 4-2007 was executed, there fore, no liability can be affixed upon him. He added that the
petitioner along with other officials of the QDA approached this Court in the same case through
C.P. No.193 of 2012, against their apprehended arrest by the NAB authorities and was admitted
to pre -arrest bail vide this Court order dated 29- 11-2012, which itself is sufficient to establish
the animus of the NAB officials against the petitioner. He also referred the order dated 2 -6-2003
passed by the learned Judge, Accountability Court -II, Quetta, o n basis whereof,
inquiry/investigation against the petitioner was withdrawn due to insufficient evidence and stated
that reopening of the investigation against him, amounts to double jeopardy, which is clear
violation of the Article 13 of the Constitution. He stated that in such view of the facts, no case is
made out against the petitioner, therefore, the NAB authorities be directed not to harass the
petitioner in any manner and the reference filed against him is liable to be quashed or in
alternative he ma y be admitted to pre -arrest bail.
4. Mr. Baz Muhammad Kakar, the learned counsel for the petitioner in Constitutional
Petition No.504 of 2014, propounded the same lines, and added that reinitiating the
inquiry/investigation and thereby trying to arrest the petitioner is violation of Article 13 of the
Constitution. He referred all the reading material and asserted that at the time of first allotment
the lease agreement was executed and signed by his client being the 'Mayor' of the QMC, and he
absolutely ha d not acted on his own, but on the direction of the then Chief Minister, Balochistan.
He maintained that in the year 1997, when the application for allotment was reinitiated the
petitioner was not holding the office, therefore, he cannot be held responsibl e for any official
business, because he entered the office being ex -officio Chairman of QDA on 17- 10-2005 and
the allottee was informed vide letter dated 18 -9-2004. He maintained that after assuming the
charge of the Chairman QDA, the directives of the Chi ef Minister, Balochistan were merely
confirmed and the agenda/ex -agenda items were placed before the governing body by the
concerned officials, therefore, the same were approved. He stated that the petitioner was mere
signatory of all the proceedings and c oincidentally was holding the office of the Mayor QMC
and thereafter the post of Chairman QDA being District Nazim. He asserted that the NAB
authorities were inspired by the proceedings before this Court in Constitutional Petition No.332
of 2012 and the whole proceedings against him are politically motivated, therefore, the malice
and mala fides are well evident on the part of the NAB officials. He finally argued that the
proceedings before the Judge, Accountability Court -II, Quetta in Reference No.07 of 2014 are
liable to be quashed or in alternative petitioner be admitted to pre -arrest bail till final disposal of
the Reference against him.
5. Mr. Muhammad Afzal, Special Prosecutor NAB strongly opposed the plea of bail and
reiterated the allegations contained in the Reference. He stated that sufficient documentary
evidence is available on record, which reveals the involvement of the petitioner for undue
pecuniary gain and misuse of their official authority. He finally added that after execution of the
sale agreement dated 26 -4-2007, the land in question was shown to have been sold out to the
private persons, who happened to be real brother and paternal cousins of Mr. Maqbool Ahmed,
while the land in question which was purchased against the payment of Rs.8 m illion is shown to
have been sold against consideration of Rs.1.9 million, therefore, it is successfully established
that Sultan Ahmed was actually the front -man of the petitioner Maqbool Ahmed, while the offer
letter dated 18 -9-2004, contains the signatur e of petitioner Ali Muhammad, who at the relevant
time was posted as "Director Estate (Revenue)" in the QDA, and prior to approval of governing
body of the QDA, he issued the offer letter on basis of valuation of the land, which was assessed
in the year 1997. Thus, in such view of the facts the petitioners are not entitled for the relief
claimed.
6. Heard. Before attending the contentions relating to the facts of the case, it would be
appropriate to dilate upon the proposition of double jeopardy as agitated by the petitioners.
The perusal of order dated 2- 6-2003, reveals that the learned Judge of the Accountability
Court -II, Quetta on the application of the Special Prosecutor granted permission for withdrawal
of investigation and the learned couns el are of the view that once the prosecution is withdrawn
same cannot be reinitiated.
7. Broadly speaking the proposition which has cropped up for consideration in the instant
case is: --
"Whether a closure of investigation amounts to withdrawal of prosecu -tion and
reinitiating the investiga -tion followed by filing of reference amounts to double jeopardy or not?"
Before making detailed comments on the afore referred proposition, it would be of
relevance to reproduce the relevant provisions of Nationa l Accountability Ordinance, 1999,
which has since been amended from time to time, particularly, in view of the dictum laid down
and the directions made thereon in Khan Asfandyar Wali v. Federation of Pakistan, (PLD 2001
SC 607).
The section 9(c) of the NAO provides that: --
"(c) If after completing the investigation of an offence against a holder of a public office
or any other person, the Chairman NAB is satisfied that no prima facie case is made out against
him and the case may be closed, the Chairman NAB shall refer the matter to a court for approval
and for the release of the accused, if in custody."
The section 31- B of NAO speaks as under: --
31B. Withdrawal from prosecu- tion:
The Prosecutor General Account -ability may, with the consent of the Court, withdraw
from the prosecution of any accused person generally or in respect of any one or more of the
offences for which he is tried and upon such withdrawal:
(i) if it is made before a charge has been framed, the accused shall be discharged i n respect
of such offence or offences; and
(ii) if it is made after a charge has been framed, he shall be acquitted in respect of such
offence or offences."
Another provision relating to release of the accused is provided under section 25(b) of the NAO ,
which pertains to release of the accused, in case of "voluntary return or plea bargain". In the
instant case both the forgoing stages had not come yet and the case was at the investigation stage,
therefore, the provision of this section will not be appli cable in the petitioners' case.
The Article 13 of the Constitution postulates the protection against double punishment
and self incrimination, which stipulates as under: --
"13. Protection against double punishment and self -incrimination. No person
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself. "
8. In this case the investigation was closed subject to provision of section 9(c) of NAO and
provision of section 31- B is also not applicable. The Section 17(a) of the NAO provides that the
provisions of the Code of Criminal Procedure, 1898 (Cr.P.C.) shall mutatis mutandis, apply to
the proceedings under this Ordinance unless there is anything inconsistent with the provision of
this Ordinance. In the instant case, admittedly, no reference under section 18 of the NAO had
been filed against the petitioners and case was at investigation stage and when no reference was
filed, the question of framing charge did not arise. In case of filing of reference the provision of
section 31- B will come into play, therefore, the reference under the aforesaid provision is neither
an acquittal nor does it terminate the investigation. It was an administrative order and the
petitioners so discharged can be re -associated with the inquiry or investigation, if the
circumstances so warrant, therefore, the order passed by the learned Accountability Court on the
application filed by the Special Prosecutor is to be consider ed as an order under section 63 of the
Cr.P.C. Hence, no embargo can be imposed on reinvestigation of the case as it has been held
time and again by the Hon'ble Supreme Court of Pakistan that no bar exists for reinvestigation
when circumstances of the case so warrant, provided, sufficient reasons for reinvestigation are
available. Reference is made to Tariq Javed Khan v. The State, (PLD 2002 Lahore 607).
These cases are of two phases, one pertains to year 1991 when the lease agreement was
executed, which was subsequently cancelled as the governing body of the QDA did not agree
with the proposal and the allottee was directed to vacate the land, while the second phase relates
to the sale of land and Mr. Maqbool Ahmed was holding the office of the Chairman Q DA,
therefore, it can also be concluded with clarity that initially when the lease agreement was
cancelled and land was resumed by the QDA, the NAB considered it sufficient and investigation
was withdrawn. But, during the second phase another mode was adopted and land was sold out
under the garb of directives of the Chief Minister, hence, investigation was reinitiated. Therefore,
the contention raised by the petitioners' counsel has no legs to stand and the provision of section
9(c) of the NAO is homologues to the provision of section 63, Cr.P.C. The closure of
investigation would be considered as the discharge from investigation and no clog can be put on
the powers of the prosecution agency to reinitiate the investigation; therefore, in no way same
can be t ermed as double jeopardy, particularly, when neither the petitioners were prosecuted nor
any charge was framed against them.
The above misconception has floated due to permission granted by the learned
Accountability Court and the petitioners are treating the said order of discharge as a judicial
order, this concept is misconceived and the permission of the Accountability Court was
mandatory in view of amendments made from time to time in the NAO, which were made in
accordance with the dictum laid down b y the Hon'ble Apex Court in Khan Asfandyar Wali's case
(ibid).
9. Now reverting to the facts of the case and in view of questions of mala fides and malice
pleaded by the petitioners, it would be advantageous to reproduce statement Sultan Ahmed
recorded i n oath in Constitutional Petition No.232 of 2012, which speaks as under: --
"Statement of Respondent No.9.
Name: Sultan Ahmed
Father's name: Haji Shadi Khan
Age: 55 years
Addres: Adjacent to Saad Medical Store, Village -aid area on
Sariab Road, Quetta.
On oath:
18-7-2012
"I have been wrongly joined as a party as I have no concern with the land in question.
Though the land was bought in my name, but I did not pay for the same. Mr. Maqbool Ahmed
Lehri purchased the said land, but used my name as a purchaser. I agree to act as the front man of
Mr. Maqbool Ahmed Lehri on account of my friendship with him. I, however, did not receive
any financial or any other benefit in respect of the said transaction. I did not execute any power
of attorney. However, I may add that my signatur e was obtained by Mr. Maqbool Ahmed Lehri
in the year 2006, but I do not recollect whether the document was signed by me on blank or it
contained any text. Though I am not very educated but I can read Urdu but I am not in a position
to read English. Mr. Rustam Khan is the cousin of Mr. Maqbool Ahmed Lehri's father are real
brothers. I see power of attorney dated 13- 4-2006 (at page 43), sale deed dated 26- 4-2007 (at
page 47) and an undated rectification deed (at page 55) and confirm that the said three
docum ents bear my signature in Urdu. I have no concern with the construction that is being
raised on the said land. I say that the said land was never owned by me nor do I have any claim
in respect thereof. I never submitted any application to the Chief Ministe r for allocation of the
said land to me."
The said statement was recorded in absence of the petitioners, therefore, during the hearing of
aforesaid C.P., the application was moved by Mr. Maqbool Ahmed and the narrations up to his
extent were omitted, how ever, the rest of the statement does not implicate Mr. Maqbool Ahmed
and same was relied accordingly.
10. The contradictory stances introduced by the petitioners are self -destructive, because the
petitioner Maqbool Ahmed was still relying upon the docume nts, which were thoroughly
discussed in Constitution Petition No.332 of 2012, and his contention that, he was mere
signatory of the minutes of the governing body's meeting are without any substance, as the land
was finally sold out in favour of Sultan Ahme d, when he was holding the position of the
Chairman QDA. Moreover, he was well aware of the previous events, because at that time he
was holding the position of the Mayor of the QMC. The petitioners' case was further diminished,
when the allottee deposed a nd reiterated in this case that he reaffirms his previous stance that he
never applied for the allotment or sale of the land. While both the petitioners in these petitions
are in unison by stating that they have had no concern with the proceedings as Sulta n Ahmed is
the original beneficiary.
The question of prime importance would be that when Sultan Ahmed categorically
denied the ownership of land still Mr. Maqbool Ahmed and Mr. Ali Muhammad were
proceeding with the matter in their official capacity, therefore, the contention of Sultan Ahmed
looks more plausible and carries sufficient substance, which prima facie connects the petitioner
with the commission of crime. Since the petitioners are relying upon the judgment of this Court
with the contention that Mr. Ali Muhammad was not a party to that petition, while Mr. Maqbool
Ahmed and Mr. Sultan Ahmed were absolved from any criminal liability, but the cumulative
effect of the facts and allegation levelled against them reflects sufficient light on role played by
the petitioners. The contention of Ali Muhammad that he was not posted in the QDA at the
relevant time is also without any substance, because the posting order dated 27- 1-2003, shows
that he was transferred and posted as Director Estate of the QDA, whi le the last letter dated 18 -9-
2004 issued by the Director Estate, QDA contains his signature. Thus, prima facie sufficient
evidence is also available against him, therefore, for the above reasons and particularly, in view
of statement made by the allottee Mr. Sultan Ahmed, the question of mala fide and malice
followed by false implication pleaded by the petitioners has no force. Moreover, in view of
contention raised by learned Prosecutor that the land which was shown to have been purchased
against the paym ent of Rs. 8.00 million but was sold in favour of real brother and paternal
cousins of Mr. Maqbool Ahmed against the consideration of only Rs.1.9 million and that too in
favour the relatives of one of the petitioners, which too creates serious suspicion about
involvement of the petitioners.
The plea propounded on behalf of petitioner Ali Muhammad that he along with other
officials of the QDA was already admitted to pre -arrest bail vide order dated 29 -11-2012 passed
in C.P. No.193 of 2012, is also without any cogent reason, because the perusal of the judgment
passed in the aforesaid petition visualizes that the same was in respect of allotment of amenity
plots in 'New Hazar Ganji Truck and Bus Stand' Quetta, therefore, contention so raised is not
worth consideration being inapplicable in this case.
11. The question of pre -arrest bail under the NAO came up for hearing before the Hon'ble
Supreme Court of Pakistan in The State v. Haji Kabeer Khan (PLD 2005 SC 364) and it is
instructive to reproduce the relev ant passage therefrom which speaks as under:
"9 .. It is to be noted that under the NAB Ordinance there is no provision for grant of bail
before arrest, therefore, this Court while examining the vires of 9(b) of the NAB Ordinance in
the case of Khan Asf andyar Wali (ibid) took view that High Court shall exercise this power
sparingly in rare and exceptional circumstances for valid reasons to be recorded in writing. In
this behalf reference can also be made to the case of Meeran Bux v. The State PLJ 1986 (s ic) 526
and Murad Khan v. Fazal -e-Subhan and another PLD 1983 SC 82."
The pre -arrest bail is an extraordinary relief, the scope whereof is narrow as compared to
the post -arrest bail, therefore, the principles for grant of pre -arrest bail and post -arrest bail are
altogether different in nature, in the matter of pre -arrest bail the court is supposed to examine, as
to whether the accused had proved mala fide on the part of the complainant or prosecution or his
false involvement is with some ulterior motives . The Hon'ble Supreme Court in case of Rana
Muhammad Arshad v. Muhammad Rafique, (PLD 2009 SC 427) has laid down the principles for
grant of pre -arrest and post -arrest bail and it is held that:
8. Ever since then, the said interpretation so made, the sa id powers so found and the
parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the
Superior Courts including this Court. But each time the matter was re -examined, the same was
only re -affirmed. The said concept as it was initially propounded; as it developed and as the
same stands today, may be summarized for the benefit of us all as under: --
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary
situations to protect innocent per sons against the victimization through abuse of law for ulterior
motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post -arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies t he conditions
specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he
establishes the existence of reasonable grounds leading to a belief that he was not guilty of the
offence alleged against him and that there were, in fact, sufficient grounds warranting further
inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for
ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and
to disagree and dishonor him;
(e) such a petitioner should further establish that he had not done or suffered any act which
would disentitle him to discretionary relief in equity e.g. he had no past criminal record or that he
had not been fugitive at law; and finally that;
(f) in the absence of a reasonable and justifiable cause, a person desiring his admission to
bail before arrest, must, in the first instance approach the Court of first instant i.e. the Court of
Session, before petitioning the High Court for the purpose.
9. This is then, the frame -work within which and the guidelines according to which, the
said jurisdiction vesting in the High Courts and the Courts of Session, is to be exercised. In
identifying the above prescribed principles, we sought guidance, inter alia, from: -
(i) The Crown v. Khushi Muhammad (PLD 1953 F.C. 170)
(ii) Muhammad Ayub v. Muhammad Yaqub (PLD 1966 SC 1003)
(iii) Sadiq Ali v. State (PLD 1974 Lah. 256)
(iv) Zahoor Ahmad v. State (PLD 1974 Lah. 256) (cited with approval in PLD 1983 SC 82)
(v) Muhammad Anwar Samma and another v. The State (1976 SCMR 45).
(vi) Murad Khan v. Fazal -e-Subhan and another (PLD 1983 SC 82)
(vii) Muhammad Safdar and others v. The State (1983 SCMR 645)
(viii) Zia -ul-Hussain v. The State (PLD 1984 SC 192)
(ix) Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCMR 68)"
12. Thus, in view of above enunciated principles the pre -arrest bail cannot be used as a
substitute or as an alternative for post -arrest bail, an d since the aforesaid grounds are not
available to the petitioners, therefore, we are not inclined to admit the petitioners to bail. The ad
interim bail granting orders dated 14 -7-2014 are hereby recalled and the petitions are dismissed
accordingly.
Before parting with this judgment we may observe with dismay that in the instant case
the role played by the Investigation Officer shows either his obliviousness about the basic
principles of investigation known as 'policing' or he was not acting as impart ial Investigation
Officer, because when the allottee Sultan Ahmed was ready to become a witness of the case and
on every occasion was shouting loudly that his name and signatures were used by the principal
accused and he himself did not procure any pecunia ry gain, still he was treated as an offender
and cited as an accused in the reference. Therefore, the copy of this judgment be sent to the
Chairman National Accountability Bureau and the Director General NAB Balochistan, for
information.
HBT/17/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,
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