IN THE HIGH COURT OF SINDH AT KARACHI
C.P.No. D- 8285 of 2019
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
1. For orders on office objection
2. For hearing of Misc. No. 36489/2019
3. For hearing of main case
01.11.2021
Mr. Raj Ali Wahid
Kunwar advocate for the petitioner
Mr. Shahbaz
Sahotra Special Prosecutor NAB
-.-.-.-.-.-.-.
NAIMATULLAH
PHULPOTO, J.- Petitioner
Sharjeel Inam Memon has filed this Constitution Petition under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973 against the National
Accountability Bureau, through its Chairman for the following reliefs:
“a. Restrain the Respondent from arresting the
Petitioner, without prior permission of this Court on the basis of any hidden
inquiry or investigation.
b. Direct
the Respondent to bring on record and produce in court the number and nature of
the inquiries and investigations initiated against the Petitioner if any, along
with complete record so that the Petitioner can legally defend himself.
c. Direct the Respondent to provide
protection to the life and liberty of the Petitioner as guaranteed under the
Constitution of Islamic Republic of Pakistan.
d. Cost
of Petition and any other better and further relief, which this Hon’ble Court
may deem fit under the circumstances.”
2. This Court vide order dated 20.12.2019
issued notices to the respondents as well as Special Prosecutor NAB for
24.01.2020, till then, it was ordered that petitioner shall not be arrested. However,
it was clarified that if for any reason adjournment is sought on the next date,
this order shall automatically stand vacated. Special Prosecutor NAB by way of
his statement dated 16.10.2020 filed particulars of six
inquiries/investigations and References initiated/ filed against the
petitioner. Thereafter, another information by way of statement dated 27.10.2021
was filed by Special Prosecutor NAB, in which investigation against the holders
of public office, legal persons and others involved in fake bank accounts scam
regarding purchase of Plot No.216, E-1, Lines Karachi, Cantonment Board (NAB Rawalpindi) and complaint against
Sharjeel Memon Ex-Minister, Sattar Qureshi Director Technical BPS-18, Anwar Ali
Cham, District officer Tech & Talat Hussain, Contractor (NAB Sukkur) were added.
3. Learned
counsel for the petitioner argued that
petitioner has already been granted bail in six inquiries/investigations and
References disclosed by the NAB, but he could not apply for pre-arrest bail in
investigation initiated by NAB Rawalpindi and in complaint initiated against
petitioner by NAB Sukkur as petitioner has not received call up notices.
Learned counsel for the petitioner apprehends arrest of the petitioner in view of
powers of Chairman NAB to issue directions for arrest in the pending
inquiries/investigations under Section 24 of the National Accountability
Ordinance, 1999. It is further submitted that NAB may be directed not to arrest
petitioner in any hidden inquiry or investigation initiated against the
petitioner. It is further argued that in future if the arrest of the petitioner
is required by the NAB authorities, he may be given prior notice of 10 days in
order to approach the court of competent jurisdiction. In support of his
contentions, leaned counsel for petitioner relied upon an unreported order dated
12.04.2021 passed by learned Lahore High Court, Lahore in W.P.No.19989 of 2021
(Maryam Nawaz Sharif vs. National Accountability Bureau etc).
4. Mr.
Shahbaz Sahotra Special Prosecutor NAB argued that NAB has filed comments in
which particulars of all the inquiries/investigations and References against
petitioner have been disclosed. It is further submitted that purpose of filing
of the petition has been achieved and now the petition has become infructuous.
5. After
hearing, learned counsel for the parties, we have perused the list/ particulars
of the inquiries/ investigations and References pending against the petitioner;
provided by NAB.
6. In
the view of above, learned counsel for the petitioner was asked by this Court
as to why petitioner is not seeking pre-arrest bail from Accountability Courts
concerned in the investigation initiated by NAB Rawalpindi and in complaint
pending before NAB Sukkur, if he is apprehending arrest at the hands of NAB for
the malafide reasons. Mr. Raj Wahid Ali counsel for petitioner submits that yet
call up notices are not received by the petitioner and NAB is acting against
the petitioner with ulterior motives.
7. In
essence, the case of the petitioner is that NAB to disclose the details/
particulars of the inquiries/ investigations and References initiated/ filed
against the petitioner. The particulars of 08 inquiries/investigations and References
were filed by the Special Prosecutor NAB by way of statement dated 27.10.2021.
Learned counsel for the petitioner stated that petitioner is on bail in six
matters but, he has not applied for bail in remaining two matters as he has not
received call up notices in the investigation
initiated against the holders of public office, legal persons and others
involved in fake bank accounts scam regarding purchase of Plot No.216, E-1,
Lines Karachi, Cantonment Board (NAB Rawalpindi) and in a complaint initiated against
Petitioner Sharjeel Memon Ex-Minister, Sattar Qureshi Director Technical
BPS-18, Anwar Ali Cham, District officer Tech & Talat Hussain, Contractor (NAB
Sukkur).
8. Article
199 of the Constitution provides that the same cannot be invoked if alternate
remedy is available to the aggrieved party under the relevant law, now remedy is available to the petitioner
in view of recent amendment in the National Accountability Ordinance, 1999
through Ordinance XXIII of 2021, called “The National Accountability (Second
Amendment) Ordinance, 2021” promulgated on 07.10.2021, whereby under Section 7,
powers, to deal with the bail matters have been conferred upon the Courts
having been established under NAO 1999.
9. It
may be mentioned here that all the
particulars/ information regarding inquiries/investigation and References have
been filed by the NAB. As regards to the contention of learned counsel for
the petitioner that inquiries / investigations and References initiated by the
NAB against the petitioner are based on malafides. It may be observed that this
Court under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973 normally would not interfere in the inquiry/investigation launched by the
NAB unless inquiry/investigation is initiated with malafide intention. Reliance
is placed upon the case reported as 2019 SCMR 2029 (Muhammad Hanif vs. The
State). Relevant paragraph is reproduced as under:
“5. Investigation
of a criminal case falls within the exclusive domain of the police and if on
the one hand independence of the judiciary is a hallmark of a democratic
dispensation then on the other hand independence of the investigating agency is
equally important to the concept of rule of law. Undue interference in each
others' roles destroys the concept of separation of powers and works a long way
towards defeating justice and this was so recognized in the case of Emperor v.
Khwaja Nazir Ahmed (AIR 1945 Privy Council 18). The relevant paragraph from the
judgment passed in that case is reproduced below:
"Just as it is essential that every one accused of a crime should
have free access to a Court of justice so that he may be duly acquitted if
found not guilty of the offence with which he is charged, so, it is of the
utmost importance that the judiciary should not interfere with the police in matters
which are within their province and into which the law imposes upon them the
duty of enquiry. In India there is a statutory right on the part of the police
under Ss. 154 and 156, to investigate the circumstances of an alleged
cognizable crime without requiring any authority from the judicial authorities,
and it would be an unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of the inherent
jurisdiction of the Court under S. 561-A. The functions of the judiciary and
the police are complementary not overlapping and the combination of individual
liberty with a due observance of law and order is only to be obtained by
leaving each to exercise its own function, always of course subject to the
right of the Court to intervene in an appropriate case when moved under S. 491,
Criminal P.C., to directions in the nature of habeas corpus. In the case of a
cognizable offence, the Court's functions begin when a charge is preferred
before it and not until then and, therefore, the High Court can interfere under
S. 561-A only when a charge has been preferred and not before. As the police
have under Ss. 154 and 156, a statutory right to investigate a cognizable
offence without requiring the sanction of the Court to quash the police
investigation on the ground that it would be an abuse of the powers of the
Court would be to act on treacherous grounds."
10. All the
requisite information/ particulars regarding inquiries/investigations and
References have been supplied by NAB to the petitioner for which this petition
was filed. No further relief can be granted to petitioner in this petition.
11. For the
aforesaid facts and reasons this constitution petition is accordingly disposed
of.
JUDGE
JUDGE