Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE. JUDICIAL DEPARTMENT W.P. No. 56733/2019 Maryam Nawaz Sharifi Vs. Chairman NAB etc. Sr. No. of order/ Proceeding
Date of order/ Proceeding
31.10.2019
Order with signature of Judge, and that of parties or counsel, where necessary.
M/s Azam Nazeer Tarar, Muhammad Amjad Pervaiz, Barrister Momin Malik, Shan Saeed Ghuman, Khawar Ikram Bhatti, Muhammad Aurangzeb, Muhammad Nawaz Chaudhry, Muhammad Adil Chatha, Salman Sarwar Rao, Sultan Mehmood Khan, Ch. Imtiaz Elahi and Hafeez ur Rehman, Advocates for the petitioner. M/s Jahanzeb Bharwana, Ch. Khaliq uz Zaman, Addl. Prosecutors, Naeem Tariq Sanghera, Syed Faisal Raza Bukhari, Ahsan Rasool Chatha, Yasir Siddique Mughal, Arshad Qayyum and Muhammad Ali Chatha, Special Prosecutors for NAB with Usman Iftikhar, I.O./A.D., Aftab Ahmed, Case Officer/Addl. Director and Zafar Hussain Ahmed, Addl. A.G.
Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner seeks post arrest bail. She was served with following grounds of arrest:“a That the accused is involved in the acts of corruption and corrupt practices as defined under Section 9(a) of NAO, 1999 and schedule thereto and AML Act 2010 as she aided and abetted co-accused persons namely Mian Muhammad Nawaz Sharif and others in acquisition and laundering the funds which were disproportionate to the known sources of income of accused Mian Muhammad Nawaz Sharif. The accused Maryam Safdar is also a beneficiary of assets disproportionate to known sources of income of the accused persons. b That the accused Mian Muhamad Nawaz Sharif remained Finance Minister Punjab, CM Punjab and Prime Minister of Pakistan. Accused Maryam Safdar being daughter of accused Mian Muhammad Nawaz Sharif and being Director/Chief Executive Officer/shareholder of Sugar Mill namely M/S Chaudhry Sugar Mills Ltd. and M/S Shamim Sugar Mills Ltd. at various times, actively aided, abetted and facilitated in acquisition of two Sugar Mills namely M/S Chaudhry Sugar Mills Ltd. and M/S Shamim Sugar Mills Ltd. from the year 1992 to 2016 with the funds which are disproportionate to their known sources of income. That the accused Mian Muhammad Nawaz Sharif, Maryam Safdar and other accused persons/shareholders of said Sugar Mills
W.P. No. 56733/2019
2
could not account for the investments of over Rs. 2,000 millions in said companies. c That the accused Maryam Safdar aided Mian Muhammad Nawaz Sharif in acquisition of 11.527 Million shares of M/S CSML worth Rs. 400 Million (approx.) in her name which they cannot account for. That the said shares were fraudulently shown to be transferred from foreign nationals namely Saeed Saif Bin Jabar Al-Suweidi, Mr. Sheikh Zaka Ud Din and Hani Ahmad Jamjoom. d That accused Maryam Safdar aided and abetted accused Mian Muhammad Nawaz Sharif, Yousaf Abbas and others, by layering through false and fictitious transfer of 11 Million shares of CSML in the name of foreigner namely Mr. Nasser Abdullah Hussain Lootah, in order to launder a foreign remittances of US $ 4.8 Million (approx.) by falsely representing it as consideration of 11 Million ordinary shares shown to be transferred to Mr. Nasser Lootah. That the said Mr. Nasser Abdullah Lootah was shown as shareholder in the M/S CSML fictitiously as he had never acquired any shares in the CSML while the funds of $4.8 Million originally belonged to the said accused persons which had earlier been placed in Dubai, the sources of said funds have also not been explained so far. e Accused Maryam Safdar in connivance with Mian Muhammad Nawaz Sharif and other acquired M/S Shamim Sugar Mills Ltd. for Rs. 1,200 M (approx.) while the said accused persons had no sufficient/known sources of funds to acquire M/S Shamim Sugar Mills Ltd. f That the evidence collected so far reveals that the accused committed offences as defined u/s 9 (a) of NAO, 1999 and also u/s 3 of AML Act. 2010, by way of aiding and abetting in the commission of offences and also by acquiring obtaining illegal pecuniary benefits through corrupt, dishonest and illegal means. g That despite 2 x call up notices the accused has neither provided the requisite record nor has offered any plausible defence.�
2.
Brief facts as presented by the National Accountability
Bureau (hereinafter to be called NAB) are that Financial Monitoring Unit (hereinafter to be called as FMU) Govt. of Pakistan vide its letter No. FMU/A&D/499/2018 dated 12.01.2018 forwarded a Suspicious Transaction Report (hereinafter to be called as STR) and Currency Transaction Report hereinafter to be called CTR to the Chairman NAB regarding various suspicious transactions of huge amounts in the account of M/s Chaudhry Sugar Mills Limited (hereinafter to be called as M/S SCML), co-accused Mian Muhammad Nawaz Sharif and the petitioner/Maryam Nawaz and other employees/relatives and the co-accused persons. The competent authority authorized inquiry No. 1(9)/HQ/2023/NAB-L on 14.11.2008 against the petitioner and others on the allegation of commission of offences of corruption and corrupt practices and money laundering as defined
under
Section
9(a)
of
National
Accountability
W.P. No. 56733/2019
3
Ordinance, 1999 (hereinafter to be called as NAO, 1999) read with Anti-Money Laundering Act, 2010 (hereinafter to be called AMLA, 2010) and schedule thereto. According to the NAB, STR/CTR were carried out in respect of 45 following bank accounts of M/S CSML:Organization Habib Bank Limited Bank Al-Falah Ltd. National Bank of Pakistan United Bank
Branch Chak No. 45 GB
Account No.
Gojra
1002801828
Main Branch Gojra Gojra
101622
United Bank
Gojra
101622
Bank Al-Falah Ltd. Bank Al-Falah Ltd. Bank Al-Falah Ltd. Bank Al-Falah Ltd. United Bank
Gojra
1600290004
Gulberg, Lahore
0028-01037913
Gulberg, Lahore
0028-02923650
Gulberg, Lahore
1003565759
Gojra
40401016229
NIB Bank
Old Race Course Road Branch, Lahore Model Branch Gulberg (Hub Branch) Tehsil Road Gojra, TT Singh Choudhry Sugar Mills Chak No. 282/jb Choudhry Sugar Mills Chak No. 282/jb
4173037
Choudhry Sugar Mills Chak No. 282/jb Choudhry Sugar Mills Chak No. 282/jb Choudhry Sugar Mills Chak No. 282/jb Choudhry Sugar Mills Chak No. 282/jb Choudhry Sugar Mills Chak No. 282/jb Choudhry Sugar Mills Chak No. 282/jb
National Bank of Pakistan Allied Bank Ltd. Habib Bank Ltd. Habib Bank Ltd.
Habib Bank Ltd. Habib Bank Ltd. Habib Bank Ltd. Habib Bank Ltd. Habib Bank Ltd. Habib Bank Ltd. Habib Bank Ltd.
Choudhry Sugar Mills Chak No. 282/jb
6667100080303
-
Title of Account Shamim Sugar Mills Pvt. Ltd. Choudhary Sugar Mills Ltd. Choudhry Sugar Mills Ltd. Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd. CSML Sugar Division
22.6760-2
Choudhary Sugar Mills Ltd.
10000327420043
Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd.
10040003893203 10040002156103
Choudhary Sugar Mills Ltd.
10040389203
Choudhary Sugar Mills Ltd.
1004000389203
Choudhary Sugar Mills Ltd.
10197900419303
Choudhary Sugar Mills Ltd.
10040002158103
Choudhary Sugar Mills Ltd.
1004002156103
Choudhary Sugar Mills Ltd.
10000000000000
Imprest A/C Ch Sugar Mills
10040000000000
Imprest A/C Ch Sugar Mills
W.P. No. 56733/2019
Habib Bank Ltd. Allied Bank Ltd. Habib Bank Ltd. Habib Bank Limited Bank Al-Falah Ltd. Bank Al-Falah Ltd. Habib Bank Ltd. MCB Bank Ltd. MCB Bank Ltd. Faysal Bank Ltd. Bank Al-Falah Ltd. Allied Bank Ltd. Habib Bank Ltd. Habib Bank Ltd. United Bank Ltd. Bank Al-Falah Ltd The Bank of Punjab Allied Bank Ltd. Habib Bank Ltd. Habib Bank Ltd. MCB Bank Ltd. Soneri Bank Ltd. Bank Al-Falah Ltd.
4
Choudhry Sugar Mills Chak No. 282/jb Tehsil Road Gojra TT Sing Lahore Corporate Center Lahore new Muslim Town Gujra
11150001 12420201055803 13150012144803 16002900004
Gujra
16002900009
Gojra New Railway Road Distt. T.T. Singh New Garden Town Lahore Gojra Main
1080020806503
Gojra Branch, Gojra Gulerg, Lahore
2800070000409
Garden Town, Lahore Lahore New Garden Town, Lahore Coudhary Sugar Mill Chak No. 282/jb Liberty Market, Lahotre Gulberg, Lahore
10000327420037
Gojra
0079BTA010327000
Bridge Colony, Lahore Pir Mahal
10000327420050
Kot Samaba Main Bazar Kot Samaba
9057900416003
Sheikho Sugar Mills Gulberg, Lahore
2012906073
108001010028601 33403010000013
00281003565760
10607900267703
Imprest A/C Ch Sugar Mills Choudhary Sugar Mills Ltd. Choudhary Sugar Mills Ltd. Choudhary Mills Ltd. Choudhary Mills Ltd. Choudhary Mills Ltd. Choudhary Mills Ltd
Sugar
Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd
Sugar
Sugar Sugar Sugar
Sugar Sugar Sugar Sugar Sugar
100440002156103
Choudhary Sugar Mills Ltd
96201123776
Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd Choudhary Mills Ltd
1003565760
1747901254703
868800041006967
10033553480
Sugar Sugar Sugar Sugar Sugar Sugar Sugar Sugar Sugar
The allegations against petitioner/Maryam Nawaz Sharif, is that she was appointed as Director of M/S CSML in 1992 and continued untill 1997 and she also served as Chief Executive Officer (CEO) of M/S CSML for the years 1995-96 by acquiring 864,000 ordinary shares which remained in her name till 2008. However, from 2008 to 2010 she became the major shareholder having over 12 Million Shares (47% ownership), whereas co-accused Mian Muhammad Nawaz
W.P. No. 56733/2019
5
Sharif, became the major shareholder in the company over 12 Million Shares (46% ownership) during the period 2014 to 2016 while he was the Prime Minister of Pakistan. The petitioner allegedly in connivance with co-accused Mian Muhammad Nawaz Sharif and Abbas Sharif, her uncle, acquired M/S Shamim Sugar Mills (hereinafter to be called as M/S SSML) in the year 2011 without explaining the origin of funds. The petitioner allegedly in aid and abetment with co-accused through illegal means, without disclosing the sources/origin of the funds obtained funds worth US $ 4.8 million. In addition, aided and abetted in obtaining another amount of Rs. 230 million from UAE in the form of foreign payments for the ultimate benefit of herself and her coaccused persons without disclosing the source. She thus acquired assets worth Rs. 2000 million from the years 2008 to 2018 through illegal means and money laundering by concealing the origin and nature, whereas she remained beneficiary of all such ill-gotten assets. 3.
The petitioner was arrested on 08.08.2019 consequent
to the warrant of arrest issued by the Chairman NAB and according to NAB during the physical remand she failed to explain the sources of funds for investments of Rs. 260 million contributing to the sale price of Rs. 1200 million shares, and admitted having acquired shares worth Rs. 440 million but again could not explain her sources. She was also confronted with the Telegraph Transfers (TT) of US$ 4.8 million on 25.11.2010 received from UAE in the account of co-accused Yousaf Abbas Sharif, which was transferred into the account of M/S CSML when she was the major shareholder, but she could not explain the sources of transactions. Likewise, her both cousins namely, Yousaf Abbas Sharif, and Abdul Aziz Abbas Sharif, received 12 payments of Rs. 230 million originated from exchange companies based in UAE during the year 2013 and she being the direct beneficiary of foreign transaction could not justify it. According to the NAB, said co-accused said cousins of the petitioner invested Rs. 260 million for acquiring M/S SSML in the year 2011 increasing its worth to Rs. 1200 million
W.P. No. 56733/2019
6
whereas, they only contributed Rs. 230 million from their personal sources and the rest of the investment was not explained. According to Form-A dated 31.12.2008 issued by Securities & Exchange Commission of Pakistan (hereinafter to be called as SECP) in respect of M/s CSML Sheikh Zaka Ud Din was holding 2,021,760, Saeed Saif Bin Jabar AlSuweidi, 9,409,090, and Hani Ahmed Jamjoon, 97,033 shares making them a total shares of 11,527,883. According to the SECP report, these shares were transferred to the petitioner on 21.05.2008 and the average price of share was Rs.38.17 per share and the shares held by the family were not enough to purchase the shares of above foreigners in the company. According to the Federal Board of Revenue (hereinafter to be called as FBR), record, the petitioner had declared the income of Rs. 7,732,370/- between 1992 to 2008 whereas that of co-accused Mian Muhammad Nawaz Sharif, between 1985 to 2008 was 15,640,600/- and that of late Kalsoom Nawaz, of the said year was 6,075,454/- and the amount required to purchase 11,527,883 shares was Rs. 440,019,294/-, therefore, they had the deficiency of funds of Rs. 41,570,870/-. 4.
According to the NAB, during the year 2010 co-
accused Yousaf Abbas Sharif, received a telegraphic Transfer (TT) of US $ 4,88,000/- equivalent to PKR 417,472,100/- in his account No. 02809616 maintained at Bank Al-Falah Gulberg Brach, Lahore on 25.11.2010 from Naseer Lootah of UAE as foreign investment in lieu of 11 million original shares of M/S CSML transferred in his name. However, Naseer Lootah, had denied having made any investment in M/S CSML for purchase of shares and he stated that US $ 4,885,000/- was invested by Sharif family in 2010 in his real estate
business
in
UAE
which
was
returned
to
co-
accused/Yousaf Abbas Sharif through TT of US $ 4.8 million. This amount of approximately 4.7 million was transferred by Yousaf Abbas Sharif, into the account of M/S CSML in Bank Al-Falah Gulberg Branch, Lahore and as such the petitioner and her father, Mian Muhammad Nawaz Sharif, the major shareholders had become the beneficiary of
W.P. No. 56733/2019
7
unexplained proceeds. Yousaf Abbas Sharif was holder of only 3% ownership and in one year he became the owner of 45% shares as the major shareholder in order to whiten unaccounted funds received from UAE. During the year 2013, Yousaf Abbas Sharif, received 5 payments amounting to Rs. 130 million without declaring the source of income or investment in UAE in his account No. 0490162781006118 maintained at MCB Bank Branch New Garden Town, Lahore which he further transferred to M/S CSML account No. 0108001010028601 at MCB Bank Branch New Garden Town, Lahore. Likewise, in the year 2013, co-accused Abdul Aziz Abbas Sharif, another cousin of the petitioner, received 7 payments from the exchange companies of UAE amounting to
Rs.
100
million
in
his
personal
account
No.
516398571005976 maintained at MCB Bank Branch New Garden Town, Lahore without any source of income or investment
in
UAE
from
his
another
account
No.
0490162781006118 transferred the amounts in M/s CSML in Account No. 01080010110028601 both MCB Bank Branch New Garden Town, Lahore. 5.
In nutshell, according to the NAB, the evidence so far
collected revealed that petitioner with the co-accused Mian Muhammad Nawaz Sharif, Yousaf Abbas Sharif and Abdul Aziz Abbas Sharif, and others with active aid, abetment and assistance
of
each
other
have
accumulated
assets
disproportionate to their known sources of income in M/s SSM
in
the
year
2011
and
in
form
of
huge
investments/deposit of unexplained money in the bank account of M/S CSML from year 2008 to 2018, thus the assets acquired through illegal means by concealing the origin and nature of aforesaid assets, and by creating multiple
layers
of
transactions
in
order
to
launder
unexplained funds, committed the offences as defined under Anti-Money Laundering AML Act, 2010 read with Section 9(a)(xii) of NAO, 1999. 6.
To
fortify
the
prosecution
case,
it
has
been
emphasized in the report and parawise comments submitted by the NAB that the party of petitioner family Pakistan
W.P. No. 56733/2019
8
Muslim League (N) was sitting at the helm of affairs of Pakistan yet the inquiry was conducted and investigation made, and according to the information/record collected, revealed/disclosed from a PANAMA based law firm, namely, Mossack Fonseca commonly referred as “PANAMA PAPERS” the petitioner’s family was found to have connections with offshore companies. The Hon’ble Supreme Court of Pakistan seized of the matter constituted a high profiled Joint Investigation Team (to be called JIT) to investigate, and after giving exhaustive hearings, the co-accused Mian Muahmmad Nawaz Sharif, was declared as not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 and disqualified to be a member of Parliament. The apex Court also directed the NAB to prepare and file Reference within six (6) weeks against the petitioner, her husband, father, brothers, amongst other relatives in respect of the Avenfield properties. Resultantly, ACR No. 19 of 2017 was filed and the co-accused Mian Muhammad Nawaz Sharif, was convicted and sentenced which shows that he was the real owner of the assets. According to the NAB, the JIT was constituted with the majority of 3 to 2 by the apex Court and the petitioner joined the proceedings and while admitting the ownership of Avenfield properties introduced certain claims regarding its acquisition. The JIT found that petitioner was the real beneficiary
owner
of
BVI
companies
namely
Nielson
Enterprises Limited and Nescoll Limited and the documents presented were found forged/tampered. A Reference No. 19 of 2017 was also filed against Mian Muhammad Nawaz Sharif and others regarding Azizia Steel Company in which he was convicted and sentenced and Reference No. 18 of 2017 was also filed against Mian Muhammad Nawaz Sharif and others regarding 16 companies and Reference No. 20 of 2017 was also filed regarding Avenfield properties. 7.
Mr. Azam Nazeer Tarar and Mr. Muhammad Amjad
Pervaiz, the learned counsel for the petitioner submit that the allegations levelled against the petitioner Maryam Nawaz Sharif is that of abetment and aiding the commission
W.P. No. 56733/2019
9
of offence under section 9(a) of NAO, 1999 and that she is not the principal accused. Add that section 9(a)(xii) of NAO, 1999 was added on 23.11.2002 vide Ordinance No. CXXXIII of 2002 and in view of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and the view given in case
titled
“Brig.
®
Karrar
Ali
Agha
Vs.
National
Accountability Court No.II, Lahore and another” reported as PLJ 2010 Lahore 78 (DB) and case titled “The State through Chairman NAB and others Vs. Muhammad Asif Saigol and others” reported as PLD 2016 SC 620 (para 12) it cannot be given a retrospective effect. Add that there is no deeming clause in the amending Ordinance, therefore, such amendment is prospective in nature and not retrospective in effect, thus, cannot be applied to the petitioner. Further added that the NAO, 1999 was promulgated on 16.11.1999 and under section 2 whereof it had effect from January, 1985, therefore, it could not be applied on the petitioner on the given allegations. They further contended that the petitioner was born on 28.10.1973 and was minor at the time when M/s CSML was incorporated on 05.04.1981. Argued that she just remained as a shareholder since it was the part of her family enterprise as reflected from Form A issued by SECP in 1983. She remained a Director from 1992 to 1997 and Chief Executive in the year 1995-96 at the time when her grandfather Mian Muhammad Sharif (died on 19.10.2004) had been controlling and supervising the M/s CSML and after his death his other son, namely, Mian Abbas Sharif managed it as CEO until his death on 11.01.2013 whereafter his son Mian Yousaf Abbas Sharif her cousin has been running the M/S CSML as CEO. Also argued that in violation of Article 13 of the Constitution as well as section 403 Cr.P.C., the petitioner is facing repeating prosecution as the JIT has already probed the matter and Reference has been filed by the orders of Hon’ble Supreme Court of Pakistan
in
investigation/inquiry
Avenfield, is
therefore,
unjustified
and
present legally
not
sustainable. Further argued that the charge was framed in Al-Azizia Reference in respect of the properties including
W.P. No. 56733/2019
10
M/S CSML, therefore, further inquiry is uncalled for. Add that the petitioner is not the beneficiary of M/S CSML and that being a mere beneficiary will not attract any offence under NAO, 1999 in view of the law laid down by the apex Court in case titled “Abdul Hameed Dogar Vs. Fedceral Government through Secretary Ministry of Interior and 2 others” reported as PLD 2016 SC 454. Added that the STR/CTR was prepared on the basis of surmises and conjectures and the correct figure of the alleged amount was not even mentioned. Add that the case of the petitioner is at the
most
of
vicarious
liability
which
could
only
be
determined by the learned trial court after recording evidence at trial, therefore, she is entitled to post arrest bail. Lastly, submit that petitioner is a woman who is otherwise entitled to the bail keeping in view the various case laws. They relied upon case titled “Muhammad Ikram and others Vs. The State” reported as PLD 1965 (W.P.) Lahore 461, case titled “Mst. Ramzan Bibi and another Vs. Hakim Muzaffar Hussain” reported as PLD 1967 Lahore 186, case titled “Ramesh Maudeshi Vs. The State” reported as 2002 P.Cr.L.J. 1712, case titled “Ch. Tanveer Khan Vs. Chairman, National Accountability Bureau and others” reported as PLD 2002 SC 572, case titled “Badar Alam Bachani Vs. The State through Chairman NAB and another” reported as 2010 P.Cr.L.J. 1988, case titled “Noorshad Vs. Chairman National Accountability Bureau and 5 others” reported as 2017 P.Cr.L.J. 1258. Also relies upon case titled “Chairman, National Accountability Bureau,
Islamabad
through
Prosecutor
General
Accountability, Islamabad Vs. Mian Muhammad Nawaz Sharif and 2 others” reported as PLD 2019 SC 445, case titled “Muhammad Zoonoon Khan Vs. Federation of Pakistan through Secretary Ministry of Law, Justice, Human
Rights
and
Parliaments
Affairs,
Islamabad”
reported as PLD 2014 Federal Sharif Court 63, case titled “Miss Shahla Raza Vs. The State” reported as 1991 MLD 1814, case titled “Mst. Afsar Bibi Vs. The State” reported as 2005 P.Cr.L.J. 164 and case titled “Khan Haroon
W.P. No. 56733/2019
11
Resikh Vs. The State and 2 others” reported as PLD 2003 Lahore 517. Also places reliance upon case titled “Messrs Hudaibya Paper Milsl Ltd. and others Vs. Federation of Pakistan and others” reported as PLD 2016 Lahore 667 and case titled “National Accountability Bureau (NAB) through Chairman Vs. Messrs Hudaibya Paper Mills Limited Lahore and others” reported as PLD 2018 SC 296. Also relies upon case titled “Asif Ali Zardari Vs. The State and another” reported as 1992 P.Cr.L.J. 58, case titled “Tariq Sultan and another Vs. National Accountability Bureaue through Chairman and 2 others” reported as 2012 P.Cr.L.J. 1983, case titled “Dr. Asghar Ali Vs. The State and others” reported as 2016 P.Cr.L.J. 193. 8.
Mr.
Jahanzaib
Bharwana,
learned
Additional
Special Prosecutor for NAB submits that extra ordinary jurisdiction regarding grant of bail is to be exercised in extra ordinary circumstances and not in run of the mill case or as a matter of course, and only when the custody of the accused was shockingly, unconscionable or inordinately delayed and not otherwise, and that primary consideration for the grant of bail is undue hardship and, more often than not, prima facie merits of the case are also to be looked into. Also submits that High Courts have already been burdened with
the
bail
application
under
Article
199
of
the
Constitution, therefore, such powers are to be exercised in circumspection and caution as extra ordinary jurisdiction is invoked and exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law and just to prevent the miscarriage of justice and abuse of NAO, 1999 and not a substitute of power under Sections 426, 491, 497, 498 and 561-A Cr.P.C. to be exercised liberally and indiscriminately as ordinary criminal jurisdiction. Adds that prima facie sufficient material is available on record to connect the petitioner with the commission of offence and that the purpose of NAO,
1999 is to curb is not
commonplace and the offenders who indulged in it are not of the normal type as these are the crimes not against the individual but against the society, therefore, response has to
W.P. No. 56733/2019
12
be dynamic and punitive rather than benign or curative and it was also argued that it may be true that an individual subjected to the rigours of this law may sometime suffer disproportionately but the greater good of the society emerging from stringent applications of this law may make this approach worth its while. According to the learned Prosecutor as stated in the parawise comments, there is a likelihood
of
underground
her or
fleeing becoming
from
the
country
unavailable
like
or
going
co-accused
Yousaf Abbas Sharif, who tried to flee/abscond from the country. Adds that record does not show/substantiate the false, evasive, vague and unfounded allegations of malice or malafide on the part of the NAB, therefore, petition does not qualify to be allowed since factual controversies have been raised. Also submits that Hon’ble Supreme Court of Pakistan had framed 13 questions to be probed by the JIT and vide order dated 28.07.2018, upon the receipt of the said JIT report, NAB was directed to file Reference against Mian Muhammad
Nawaz
Sharif,
petitioner,
Hussain
Nawaz,
Hassan Nawaz and Capt. ÂŽ Muhammad Safdar, relating to Avenfield properties (Flats No. 16, 16-A, 17 and 17-A, Avenfield House, Park Lane, London, UK. 9.
Arguments heard. File perused.
10.
After hearing the learned counsel for the petitioner
and
the
learned
Prosecutors
for
NAB
assisted
by
Investigating Officer/case officer and perusing the record placed before this Court, we have straightway noticed that petitioner being a woman had invoked the Constitutional jurisdiction
of
this
Court
under
Article
199
of
the
Constitution of Islamic Republic of Pakistan, 1973 for the grant of her post arrest bail made on the allegation that she aided and abetted as CEO/Director/ shareholder of M/s CSML and SSML to facilitate in acquiring of assets disproportionate to the known sources of income of the petitioner, her father namely, Mian Muhammad Nawaz Sharif, and others since their investment of Rs. 2000 Million was not accounted for. She has also been alleged to have aided her father to acquire 11.572 Million shares of M/S
W.P. No. 56733/2019
13
CSML worth Rs. 400 Million statedly transferred by three foreign nationals namely, Saeed Saif Bin Jabar Al-Suweidi, Sh. Zaka-ud-Din and Hani Ahmed Jamjoom. Another UAE national, namely, Nasser Abdullah Hussain Lootah, made TT of US$ 4.8 Million as consideration for 11 Million ordinary shares was found false only in view of his statement recorded on 03.08.2019. She has also been alleged to have connived with her father to acquire assets of SSML of worth Rs.1200 Million without disclosing the sufficient funds and thus she aided and abetted her co-accused person to gain and extend pecuniary benefits through corruption and corrupt practices. 11.
According to Section 9 (a)(xii) of NAO, 1999 if someone
aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office, accused of an offence defined in Section 9(a) (i) to (xi) of NAO, 1999, can be punished under Section 10 of NAO, 1999 for a term which may extend to 14 years. This Section was not originally in the Ordinance but was added through Ordinance No CXXXIII of 2002 dated 23.11.2002 obviously without retrospective effect. However, the allegations were levelled for the period of the year 2008 onward, therefor, this section prima facie can be attracted in the present case with Reference to its existence at the time of alleged crime. 12.
Since the case was argued before us with a well-known
background, therefore, it would be expedient to lay down some basic premise for the purposes of our discussion essential for the order in present case. In the judgment reported as PLD 2017 Supreme Court 692, a final order was announced under which NAB Rawalpindi/Islamabad was directed to file Reference within a period of 6 weeks on the basis of material collected and referred to by the JIT in its report and such other material as may be available with FIA and NAB having any nexus with the assets mentioned or which may subsequently become available pursuant to the Mutual Legal Assistance Request sent by JIT to different jurisdictions. In clause “a� of the said order Reference was to be filed against the petitioner and others in respect of
W.P. No. 56733/2019
14
Avenfield properties in UK and under clause “c” on the basis of statements of Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, made against the petitioner leading to the acquisition of assets beyond the known sources of income, and under clause “f” any supplementary Reference could also be filed. Notably, M/S CSML was not mentioned anywhere. Relevant extract is reproduced as under:“FINAL ORDER OF THE COURT. The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the matrial collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal \Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:(a) Reference against Mian Muhammad Nawaz Sharif, (respondent No.1) Maryam Nawaz Sharif (Maryam Safdar), (Respondent No.6), Hussain Nawaz Sharif (Respondent No.7), Hassan Nawaz Sharif (Respondent No.8) and Capt. (Retd). Muhammad Safdar (Respondent No.9) relating to the Avenfield properties (Flats Nos. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material alrady collected during the course of investigations conducted earlier, as indicated in the detailed judgments. (b) ………… (c) ………… (d) ………… (e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmad, who have any direct or indirect nexus or connection with the actions of respondents Nos.1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income.”
13.
On 12.01.2018 STR/CTR were received in respect of
politically exposed persons and linked individuals/entities on the basis of details in Volume 1 and 2 of the report submitted before the Supreme Court and according to clause 5 thereof, in respect of M/S CSML, the petitioner was mentioned as one of the directors amongst many others; a status which is not denied by the petitioner. In the analysis of STR/CTR, a reference was given to the report submitted by HBL in respect of M/S CSML dated 22.09.2017 in respect of account maintained with their Corporate Center Branch since 24.10.1998 and under clause “5(a)” of CONCLUSION AND RECOMMENDATIONS a mention was made to the judgment of PANAMA Papers against Mian Muhammad
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15
Nawaz Sharif by the Supreme Court of Pakistan and it was stated that M/S CSML had maintained several accounts in the business name of HBL, some of them have been closed and some remained dormant since it was mostly for business transaction. One transaction in the MCB Bank account of Mian Muhammad Nawaz Sharif reflects transfer of Rs. 18.019 Million to M/S CSML and Rs. 2.335 Million transferred from SCB account to Mian Muhammad Nawaz Sharif and then to M/S CSML. But the name of the petitioner does not figure out anywhere. Relevant excerpt is reproduced as under:“5. The other STRs/CTRs received pertained to Chaudhary Sugar Mills Ltd, Mian Muhammad Shahbaz Sharif and some possibly linked individuals. The STRs were raised in the backdrop of the judgment on Panama Papers case against Mian Muhammad Nawaz Sharif by the Supreme Court of Pakistan. a. Chaudhary Sugar Mills had been maintaining several accounts in the business name with HBL, some of which have been closed or become inactive over a period of time. However, the suspicion was not raised on any particular transaction in the accounts of Chaudhary Sugar Mills. The transactions in the accounts mostly appear to be business transactions. One of the transactions in the MCB account of Mian Nawaz Sharif reflects transfer of Rs.18.019 M to M/s Chaudhary Sugar Mills Ltd. Likewise, funds amounting to Rs.2,335 M were transferred from SCB account of Mian Nawaz Sharif to M/s Chaudhary Sugar Mills Ltd.”
14.
These two important foundations do not prima-facie
expose the name of petitioner directly to suggest that she actively participated, connived, abetted or aided to acquire assets disproportionate to the known sources of income since no connection of the petitioner was established with said foreign nationals in order to persuade them to invest in M/S CSML to attract the provisions of NAO, 1999 & AMLA 2010. 15.
It has also not been denied by either party that during
the proceedings in the PANAMA case, M/S CSML never remained as a subject of discussion, therefore, in our considered view NAB can possibly probe and investigate into the matter and the question of double jeopardy would not prime facie arise in favour of the petitioner. Article 13 of the Constitution and section 403 Cr.P.C. and the judgment cited at
bar
do
not
support
the
petitioner, therefore,
the
judgments cited at bar titled “Muhammad Ikram and
W.P. No. 56733/2019
16
others Vs. The State” reported as PLD 1965 (W.P.) Lahore 461, case titled “Mst. Ramzan Bibi and another Vs. Hakim Muzaffar Hussain” reported as PLD 1967 Lahore 186, case titled “Ramesh Maudeshi Vs. The State” reported as 2002 P.Cr.L.J. 1712, case titled “Ch. Tanveer Khan Vs. Chairman, National Accountability Bureau and others” reported as PLD 2002 SC 572, case titled “Badar Alam Bachani Vs. The State through Chairman NAB and another” reported as 2010 P.Cr.L.J. 1988, case titled “Brig. ® Karrar Ali Agha Vs. National Accountability Court No.II, Lahore and another” reported as PLJ 2010 Lahore 78 (DB), case titled “Noorshad Vs. Chairman National Accountability Bureau and 5 others” reported as 2017 P.Cr.L.J. 1258 will not be attracted to the present case. 16.
Likewise,
the
other
argument
raised
from
the
petitioner’s side is that at the time of incorporation of M/S CSML in the year 1981, the petitioner was a minor, therefore, she cannot be held responsible for any such transaction but this argument cannot be appreciated at this stage for the simple reason that allegations against her pertain to year 2008 and onward when she was not only major but also shareholder with increased shareholding in M/S CSML. 17.
However, as far as the ownership of share of Nasser
Abdullah Hussain Lootah, a UAE national is concerned, the official record pertaining to SECP does not show that he was not the shareholder, therefore, ipso facto his denial of this fact mentioned in Form A dated 10.02.2012 needs further probe since correction of this record require some procedure to be adopted by him, which we have not noticed in the present case. Besides, presumption of truth is attached to the Form A as held in case titled “Waseem Yaqoob Vs. Chief Commissioner,
Income
Tax,
Lahore
and
2
others”
reported as 2012 PTD 1883. The relevant extract is reproduced as under:“In the instant case it has done so and accordingly, the Company filed the Form A for the year 1997. Furthermore, section 155 of the C O 1984 provides that the registers referred to in
W.P. No. 56733/2019
17
section 156 shall be prima facie evidence of the matters contained therein. Section 156(4) provides that all the particulars to be submitted under section 156(1) and (2) shall have been entered in the register maintained with the company. Reading both these sections together means that the Form A is prima facie evidence of the matters contained therein and if the respondents refute or deny the information then, it should be through cogent evidence supporting their stance.”
Importantly, he has admitted before the NAB that he sent the money out of the investment made by the petitioner’s family in real estate on their instructions back to them though he does not own any share in M/S CSML. In our considered view, the petitioner has prima facie shown her money trail linked to the said foreigners, leaving the prosecution to further probe into the matter of the allegation against the petitioner. We were informed that Mr. Lootah had made a statement on 03.08.2019, photocopy of which was neither certified nor notarized by foreign office. However, a statement was recorded under Section 164 Cr.P.C. before the court
of
Waseem
Ahmed
Khan,
Additional
District
Magistrate, Islamabad on 05.08.2019, repeating the said statement, in the absence of the petitioner and her learned counsel without permitting the right to cross-examine, therefore, its effect may be considered by the trial court after recording of evidence. Besides, the fact of TT US$ 4.885 Million sent to Yousaf Abbas Sharif’s account in Pakistan as a profit/investment from real estate made by the family of the petitioner would shift the onus back to the prosecution to prove it as a dubious transaction. Importantly, statements of other three foreigners namely, Saeed Saif Bin Jabar AlSuweidi, Sh. Zaka-ud-Din and Hani Ahmed Jamjoom, have not so far been recorded by the prosecution who were also mentioned as shareholder vide Form A dated 21.05.2008, therefore, calling for further probe into the guilt of the petitioner. In case titled “Abdul Aziz Memon and others Vs. The State and others” reported as PLD 2013 SC 594, it was held that even the foreign officer making transaction with the holder of public office may be come accused and falling in any category of “accused persons” but in the present case such foreigners were not cited as accused persons.
W.P. No. 56733/2019
18.
18
Besides, in “Abdul Hameed Dogar Vs. Federal
Government through Secretary, Ministry of Interior and 2 others” reported as PLD 2016 SC 454, it has been held that there is a difference between an aider/abettor and a beneficiary as the former abets or aids with another who is a privy to the acts itself but a beneficiary takes the benefit or advantage of the said act after the event. In the present case, as already discussed above, it has not come on record that the petitioner had in any manner aided, abetted to persuade the foreign nationals to send their money into M/s CSML account.. The relevant extract of the judgment at page 461 is reproduced as under:“The difference between an aider/abettor and a beneficiary is quite obvious. A person aiding or abetting another in an act is privy to the act itself but a beneficiary takes benefit or advantage of the act after the event and he may not necessarily be a party to the act itself.”
19.
Here a reference can also be given to case titled “Asif
Ali Zardari Vs. The State and another” reported as 1992 P.Cr.L.J. 58, passed by the Division Bench of Hon’ble Sindh High Court in which the offence of abetment was explained with reference to its ingredients which shows the elements of mens rea as sine qua non for the constitution of the said offence. The relevant extract from page 70 is reproduced as under:“The offence of abetment has been defined by section 107 of the Pakistan Penal Code. The definition shows in the first instance, that a person abets the doing of a thing who instigates any person to do that thing . Secondly, a person is also said to abet the doing of a thing who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing'. Thirdly, a person is said to abet the doing of a thing if he intentionally aids, by any act or illegal omission, the doing of that thing'. In Ballentine's Law Dictionary the word instigate has been defined to mean `to stimulate or goad to an action, specially a bad act, to incite, to foment, specially the commission of a crime'. The same word has also been defined by Black's Law Dictionary as `to stimulate or goad to an action, specially a bad action'. `Instigation' has been defined by the same Dictionary to mean as 'incitation, urging, solicitation. The act by which one incites, another to do something, as to commit some crime or to commence a suit'.” “We would like to point out that, as is evident from the definition of abetment contained in section 107, Cr.P.C. mens rea would be an essential ingredient of the said offence. Maxwell on the Interpretation of Statutes (12th Edn.) at page 123 observes: `where an offence is created by Statute, however comprehensive and unqualified the language of the Statute, it is usually understood as silently requiring that the element of mens rea
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19
should be imported into the definition of the crime, unless a contrary intention is expressed or implied'. The definition of abetment in section 107, P.P.C. relates to instigation, conspiracy and intentional aiding. An element of criminality must, therefore, be clearly spelt out before a person can be indicted for abetment.”
20.
On the question of assets beyond means, in case titled
“Ghani-ur-Rehman Vs. National Accountability Bureau and others” reported as PLD 2011 SC 1144, it has been held that mere possession of any pecuniary resources of property is not an offence but its failure to satisfactorily account for such possession of pecuniary resources of property that makes the possession objectionable and constitute the relevant offence. This view has already been adopted by this court in case titled “Brig. ® Imtiaz Ahmad Vs. The State” reported as PLD 2017 Lahore 23 for assets beyond means which has been upheld by the Hon’ble Supreme Court of Pakistan. The observations of their lordships read as under:“To cater the situation we have been guided again by the Supreme Court of Pakistan in Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 Supreme Court 1144), wherein it was held that the prosecution must bring on record the misuse of authority of the public servant to show that the assets built by him is disproportionate to the known source of income. Relevant extract of said judgment is reproduced as under:-"The law now stands settled that in order to prove commission of an offence under section 9(a)(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily to account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes the relevant offence. In the case in hand the appellant's sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and, therefore, it was not possible for the learned trial court to conclude or to hold that the appellant or his dependants or so-called benamidars owned or possessed assets or pecuniary resources disproportionate to the appellant's income. It is unfortunate that the investigating officer of this case as well as those responsible for prosecution of this case before the learned trial court had, probably on account of their sheer incompetence, utterly failed to do the needful in this regard and it is regrettable that even the learned trial court as well as the learned appellate court had completely failed to advert to this critical aspect of the present case."
W.P. No. 56733/2019
21.
20
As far as section 3 of Anti-Money Laundering Act,
2010 is concerned, it will be expedient to reproduce the same:“3. Offence of money laundering.—A person shall be guilty of offence of money laundering, if the person:— (a) acquires, converts, possesses, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime; (b) conceals or disguises the true nature, origin, location, disposition, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime; (c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or (d) participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), (b) and (c). Explanation-I.— The knowledge, intent or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984). Explanation II.- For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate offence shall not be required.”
Perusal of said Section reveals that there has to be some nexus with the crime proceeds and, therefore, it presupposes that some crime had been committed. According to the learned Prosecutor, the offence under NAO, 1999 is an “intended” crime, therefore, to attract the ingredients of this Section, further investigation will be required. In case titled “Syed Mushahid Shah and others Vs. Federal Investment Agency and others” reported as 2017 SCMR 1218, it has been held that in case of conflict between two special laws containing over riding clauses, the later-in-time would prevail over the statute prior in time but this is not automatic instead a host of other factors will be attracted. Obviously, AMLA 2010 is later in time which attracts lesser punishment, therefore, it would be interesting discussion before the trial court on this aspect. 22.
The question of making layers and becoming beneficial
also requires further probe since it is not the prosecution case that investments in the real estate in UAE was out of some crime proceeds in the form of ill-gotten money. It is also not the prosecution case that said money coming from
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21
UAE was black money having origin from some crime proceeds of internationally recognized crimes like terrorism, etc. Undoubtedly, attracting foreign investment has always been a perennial demand of every government and all governments would dream of it but great hurdles were always faced by them to make it a reality. 23.
We have been shown the bank statement of Account
No. 0149056661004053 in the name of petitioner in which transaction of Rs. 41,06,6200 and Rs. 28,933800 were made in the month of November, 2011 and a sum of about seven crores rupees were withdrawn in the same month by the petitioner but on the face of it, it does not help out the prosecution for the simple reason that it is not the prosecution case that M/S CSML was bankrupt or was in loss,
therefore,
no
money
could
be
withdrawn
by
shareholder/CEO. However, this aspect of the matter can be probed by the NAB. It was held by this court in case titled “Dr. Asghar Ali Vs. The State and another” reported as 2016 P.Cr.L.J. 193 that the benefit of any such transaction should be clear and visibly established and should not be shrouded in mystery. The withdrawal of amount of Rs.7 crore as alleged by the NAB, cannot be termed as illegal gotten money or an asset beyond known source of income since prima-facie the source of money was shown in the official record of the M/s CSML with Reference to foreign investment. 24.
The judgments cited by the prosecution as case titled
“Tallat Ishaq Vs. National Accountability Bureau through Chairman, and others” reported as PLD 2019 SC 112, does not totally oust the jurisdiction of this court under Article 199 of the Constitution for the simple reason that the constitutional jurisdiction which is always attracted where there is absence of alternate and efficacious remedy. However, besides considering the hardship of the case, merits of the case will always be taken into consideration at the time of deciding of bail application. It is true that corruption and corrupt practices are rampant in our society, therefore, needed to be curbed with iron hands but at the
W.P. No. 56733/2019
22
same time, this court cannot keep its eyes off the legal proposition that bail cannot be withheld as a punishment since this court would otherwise transgress into the power of the trial court to return its finding upon guilt on the basis of evidence. In case titled “Abdul Aziz Khan Niazi Vs. The State through Chairman NAB, Islamabad� reported as PLD 2003 SC 668, it was held that the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of (woman) bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. The relevant extract is reproduced as under:“6. The grant of bail in Constitutional jurisdiction by thigh Court is t entirely discretionary but there can be no deviation to the rule that discretion should not be exercised in violation of recognized principles of justice and if it is exercised only on the basis of presumption, inference, suspicion or bare allegation, it would defeat the very purpose of discretion. The High Court, in exercise of its discretion, should not proceed in departure to the recognized principles and in case such an error is committed, the Supreme Court is always empowered to interfere in the matter in the interest of complete justice. The law does not permit to detain the people in jail only on the basis of presumption and suspicion of commission of criminal acts, therefore, it is the duty of Court to administer the justice, prevent the abuse of law and protect the liberty of people. The High Court while considering the question of bail in its Constitutional jurisdiction can examine the nature of allegation on the basis of tentative assessment of the evidence in the hands of prosecution to ascertain prima facie, the question of guilt or innocence of an accused for the purpose of grant or refusal of bail and without expressing on the merits of the case, lest it should prejudice the accused or prosecution, should exercise discretionary jurisdiction in the interest of administration of justice. This is settled law that bail cannot be claimed as a matter of right but there can also be no departure to the rule that bail in non-bailable offences should not be withheld as punishment, therefore, the High Court while dealing with the question of bail in its Constitutional jurisdiction must consider it carefully and weighed in the scale of justice. The reasonableness of the grounds for withholding the bail to person accused of a non-bailable offence must be shown through the material and merely a suspicion may be sufficiently strong, is not enough to refuse the bail. There can be no cavil to the position that the High Court may or may not interfere in a matter in its discretionary jurisdiction but refusal to interfere must not offend the spirit of law and cause of justice as the object of exercise of discretionary jurisdiction is always to foster the justice, preserve the rights and protect the liberties. This Court in Manzoor and 4 other v. State (PLD 1972 SC 81) held as under:-"It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
W.P. No. 56733/2019
23
This judgment, with utmost respects of the Hon’ble Supreme Court, was neither discussed nor referred in Tallat Ishaq’s case. 25.
Besides, this court in W.P.No.42682-2019 titled
“Muhammad Sabtain Khan Vs. National Accountability Bureau, etc.” and W.P.No.581-2019 titled “Hafiz Mian Muhammad Nauman Vs. Director General NAB etc.”, has decided
that
in
appropriate
cases
the
constitutional
jurisdiction in respect of the grant of bail can be exercised and, therefore, fully attracted in the present case. 26.
The petitioner had also filed an application for the
interim bail so as to see her ailing father already hospitalized in which we have been informed by the State that she is accompany her father in the hospital to look after his health, therefore, prayer to the extent of grant of interim bail has not been pressed by the learned counsel for the petitioner. 27.
The petitioner also seeks bail on the ground that she is
a woman and refers to the judgment given in case titled “Miss Shahla Raza Vs. The State” reported as 1991 MLD 1814 and case titled “Mst.Afsar Bibi Vs. The State” reported as 2005 P.Cr.L.J. 164, in which it was held that grant of bail to a woman is also discretionary but the courts have always been leaned towards such exercise, therefore, grant of bail to a woman should be a rule and discretion must be exercised in her favour in the absence of compelling circumstances disentitling her to the grant of bail. In the present case the exceptional circumstances do not appear to attract in favour of the prosecution, since she has neither absconded nor obstructed the process of law. A reference may also be given to case titled “Zohra Khanum Vs. The State” reported as 2009 SCMR 751 in which the Hon’ble Supreme Court of Pakistan has held that showing the common intention/abetment by a woman even in a murder case required further probe, therefore, the bail was granted. Besides, in the judgment titled “Chairman,
National
Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad Vs. Mian Muhammad Nawaz Sharif and 2 others” reported as PLD 2019 SC 445
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24
it was already observed that the petitioner being a woman was rightly granted to concession of bail. Relevant extract of para 6 is reproduced as under:“One of the said respondents is already in ail after having been convicted and sentenced in connection with another criminal case, another of the said respondents is a woman and the law envisages concession for her in the matter of bail and the sentence of imprisonment passed by the trial court against yet another of the said respondents was quite short.�
28.
Since the prosecution has shown the bank statement
of the account No.0149056661004053 of the petitioner in which on 28.11.2011 vide Cheque No.39438534, Rs.7 crores were withdrawn and the prosecution has apprehension of fleeing away of the petitioner, therefore, to satisfy our judicial conscience we would pass a conditional order. 29. cited
Keeping in view the above discussion and the case law by
the
constitutional
respective
parties,
jurisdiction
under
while Article
exercising 199
of
the the
Constitution of Islamic Republic of Pakistan, 1973, we allow this petition and admit the petitioner to post arrest bail subject to furnishing of surety bonds in the sum of Rs.10 Millions with two sureties each in the like amount to the satisfaction of the learned trial court and to establish her bonafide would also deposit amount of Rs.7 crore with the Deputy Registrar (Judicial) of this court besides submitting her passport(s) with him.
(SARDAR AHMED NAEEM) Judge
(ALI BAQAR NAJAFI) Judge
Announced in open court on _____________ Judge
Judge
Approved for reporting. Judge Shahzad/A.Qadoos*
Judge