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IN THE HONOURABLE LAHORE HIGH COURT AT LAHORE
Writ Petition No. 17809 of 2020
Mir Shakil ur Rahman
Vs.
The Chairman, NAB, Etc
(WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973)
WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER
Respectfully Sheweth:
A. GENERAL OVERVIEW:
1. The Petitioner only seeks BAIL;
• Is prepared to face an inquiry and NAB proceedings, if any (since other
laws such as the LDA Act cater to the subject matter);
• Has been cooperating with NAB at a stage admittedly of ‘Complaint
Verification’
o By appearing both times even when illegally summoned in
violation of the Directive/Policy Guidelines dt. 08.10.2019
(Annexure A (Pg.18)).
o Such arrest has even otherwise been deprecated by the Hon’ble
Islamabad High Court in WP No. 769 of 2019 titled ‘Amjad
Mustafa Malik v. DG, NAB’ and the pre-determined arrest by
the NAB DB of this Honourable in Irfah Murtaza’s case (PLD
2019 Lahore 565).
• Does not, at present, seek quashment;
o Although it is a pre-eminent case for quashment
• Undertakes to co-operate in the future as well.
o .
2. THE CASE IS 34 YEARS OLD.
YES, to emphasize, it is34 years old!!
3. The transaction took place in 1986. THIS IS BEING HEARD IN 2020.
4. It is purely a civil private transaction;
• Between two private citizens: None of whom is a holder of public office
amenable to NAO 1999
• Accused/Petitioner purchased the entitlement to
o 1/3 of 180 Kanals
▪ from 7 owners (Hidayat Ali etc)
5. Accused/Petitioner had no title or powers except those delegated to him as the
ATTORNEY
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6. No complaint/suit filed, in 34 years of (any) dissatisfaction, with the deal;
• By the previous owners/sellers or by NAB.
• In fact, now NAB is trying to coerce him after 34 years
▪ NAB itself has been there for 20 years: No objection whatsoever.
THUS:
7. 180 Kanals 18 marlas were taken over by LDA; and
• Only 30% allowed to be retained by the owners; (Hidayat Ali Etc.)
THEREFORE:
8. Depriving them forcibly of the greater portion of their own lands;
• This is predatory piratical act by the LDA.
• The law must lean in favour of the Petitioner/Citizen.
9. And all that the Petitioner seeks is Bail as, besides the above:
o Benefit of doubt has to go to the accused at all stages including bail;
o Bail is not to be refused as a punishment;
o As conceded by NAB and the learned trial court (below) this is a case of
further inquiry.
o The Petitioner is an old, sick and infirm person debilitated particularly
by severe tinnitus, breathing problem and breathlessness as well as other
serious ailments that cannot be treated in jail/custody.
o The case depends only upon documentary evidence, which is ancient,
and as such unalterable.
o In any case the entire LDA record has already been seized by the NAB.
o Even otherwise where an allegation can be tried under two Acts, laws or
provisions of law, the prosecution ought to be under that which provides
the lesser punishment.
o Thus this a case for the invocation of Sec.35 of the LDA Act and the
NAB Court has no jurisdiction.
o
o Moreover bail can be granted in a Habeas Corpus Petition;
▪ Even if, and, without prejudice, no prayer for bail may have been
made.
▪ In the present case bail has been sought under the principle set
out in Khan Asfandyar Wali (PLD 2001 SC 607 at 885).
B. WARRANT OF ARREST: was illegal and non-est because:
1. It was issued before the inquiry was completed
This is admitted by prosecution with the consequence that:
o The case was still at merely the ‘Complaint Verification’ stage when he
was arrested on 12.03.2020 AT LAHORE.(ref. Notices dt.
28.02.2020(received on 03.03.2020)(Annexure B (Pg.19)) and
10.03.2020.
• That the Warrant of Arrest had, on the same day, been issued by the
Chairman IN ISLAMABAD while the accused was still being
interrogated in Lahore.(ref.Warrant of Arrest (Annexure C (Pg.20))
• There is thus no question, therefore of the Chairman having seen any
of the materials before he signed the Warrant of Arrest.
• As such the Warrant of Arrest, inter alia, falls foul of Nawaz Sharif’s case
(PLD 1993 SC 473), Irfah Murtaza (DB)Judgment of the NAB Bench of
this Hon’ble Court in Irfah Murtaza (PLD 2019 Lahore 565), as well as
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Articles 4,9,10-A and 25 of the Constitution 1973 and Section 24-A of the
General Clauses Act, 1897.
• In fact, the entire assertion made by the NAB (that the material was sent
by NAB Lahore to the Chairman at Islamabad BY FAX is a hoax and
intended to mislead this Hon’ble Court.It is mala fide.
• Let the NAB produced the entire FAX and Faxed documents to prove
that its statement is true. It is not.
• In fact, THE ENTIRE PROCEEDINGS WERE VIDEO RECORDED by
NAB, and, the failure to produce the video belies the assertion of NAB.
• Let NAB produce the entire unedited video of that day’s proceedings when
(on 12.03.2020), he was arrested, and the NAB’s lies will come forth.
• The failure to produce also raises the presumption under Art. 129(g) of
the QSO, 1984 that evidence which could be and is not produced would,
if produced, be unfavorable to the person who withholds it.
• Thus too, the BENEFIT OF THE DOUBT must go to the Accused/Petitioner.
• It is also, as submitted below, a case of FURTHER INQUIRY, as admitted
by NAB and the learned Accountability Court.
ABOVE ALL:
1. The WARANT OF ARREST clearly and brazenly violates the
Directive/Policy Guidelines dt.08.10.2019 (Annexure A (Pg.18)) that
were prescribed and laid out by the competent authority itself. This
prohibited the arrest, in the first place, of people in the class and
category of the Accused/Petitioner.
• NAB’s stance at paragraph 16 (Pg. 6) of its Report and Parawise
Comments that the ‘Directive/Policy Guidelines is issued for
businessmen acquainted with the facts of the case. This policy is not
for persons nominated as accused under the relevant provision of NAO
1999’ is, on the very face of it absurd to say the least. It defies any
logic or reason whatsoever.
• What does: NAB mean by “businessmen acquainted with the facts of
the case?
• Is this term used in the Directive/SOP? No.
2. As per the Directive/Policy Guidelines, the Petitioner could not even
have been summoned without an initial notice being served upon him in
the first instance and his response to it duly considered,
3. And after a formal questionnaire in the second instance with his
responses fully considered.
4. At both stages, officers subordinate to the competent authority
(conducting the interrogation) are to APPLY THEIR MINDS before
coming to a definite conclusion and sending that as a report to the
Chairman.
5. But the latter PROCEEDING (THE INTERROGATION) was still
under way IN LAHORE when the Warrant of Arrest arrived FROM
ISLAMABAD.
6. The fact that both S. 18 invoked by the Chairman NAB, and the
invocation of S. 24 by DG NAB on the same day (in Islamabad and
Lahore respectively) impress upon the learned Judge (in the Second
Remand Order below) to hold that these were two independent
processes. If so:
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• NAB itself should not have been at pains to aver that the
Chairman was sent the materials via FAX from Lahore.
• If so when? And Why?
• What was the need to send any material via FAX if the two
processes were independent?
• That is to an admission by the NAB and the learned judge that
the Chairman had no material before him when he issued the
Warrant of Arrest.
• And this, at the least, requires further inquiry.
7. This case is accordingly entirely parallel to that of Irfah Murtaza (PLD
2019 Lahore 565). The NAB had pre-designed and contrived an
occasion to arrest the Accused/Petitioner without even paying heed to
his co-operation and his defence.
8. Such arrest has even otherwise been deprecated by the Hon’ble
Islamabad High Court in WP No. 769 of 2019 titled ‘Amjad Mustafa
Malik v. DG, NAB’ and set aside in Irfah Murtaza (PLD 2019 L 565)
The Warrant of Arrest was thereby non-est and illegal.
9. The fact that such departmental instructions are binding as law has been
enunciated fully in Dr. Habibur Rahman case(PLD 1973SC 148), and, the
benefit thereof should be given by the Chairman NAB’s own judgment as a
Judge of the Hon’ble Supreme Court in Ch. Khan Mohammad case (2004
PLC (CS) 624).
10. The Warrant of Arrest thus being illegal, and void, based upon malice
aforethought, could not be acted upon and the arrest of the Accused/Petitioner
is illegal ab initio.
11. (The grounds for Malice will be addressed below).
12. The Accused/Petitioner could also have been released, otherwise than
on bail, under the very last phrase of sub-clause (2) of r S. 497Cr.PC.
13. Other remedies as provided in § 63, 91 and in the last words in
S.497(2) CrPC are not barred by sec. 9(b).
14. In fact, it was incumbent upon the learned Accountability Court, in the
circumstances to release the Accused/Petitioner on discharge him under
S. 63 CrPC pending some new material being discovered by the
prosecution.
15. There sure is precedent for that in:
1985 PCrLJ 244 (Mr. Justice Zafarullah)
2015 PCrLJ 626 (Mr. Justice Abdus Sattar)
C. THE FIRST REMAND ORDER DATED 13.03.2020: (Annexure D (Pg.21-24))
This was illegal on the face of it because:
1. It did not examine the illegality in the Warrant of Arrest;
The learned Judge wrongly concluded at the outset that he was not required to
give any reasons for the remand order because, in terms of S. 24(d) of the
NAO1999, it was the
2. FIRST REMAND ORDER and no reasons were required to be given
by him in support of his decision.
• Contrary to S. 167(3) CrPC read with S. 17 of NAO 1999 as well
as the judgment of a full bench of the Hon’ble Supreme Court in
the Anwarul Haq Qureshi case (2008 SCMR 1135)
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3. Even otherwise, with respect, this is absurd logic as it spells out that in
this day and age:
• A person can be arrested and lodged in custody for 15 long days
arbitrarily and without just cause.
• This is preposterous and absurd in this day and age. NAB has no
divine or royal prerogative (as held in the Second Remand order).
Those concepts are long since gone.
• Even though the learned Judge has mentioned some facts, but has
consistently refused to apply his mind upon those facts insisting
that he is not obliged to do so in the first remand under sec. 24(d)
of the GCA, 1897.
• As such the First Remand Order was void ab initio and with no
existence in the eyes of law.
• Thus the Accused/Petitioner remained in unlawful custody at
least until the Second Remand Order (though the
Accused/Petitioner’s position is that he continues to remain in
illegal custody in the case) on the well settled principle that
where the initial order is void all subsequent orders fall (Yusuf
Ali case ~ PLD 1958 SC 104 (FB-5JJ))
• No citizen of Pakistan can be detained or held in such arbitrary
manner even for one moment under the Constitution and the
Law..
4. It may be emphasized that the legality of a remand order can be examined in
Writ Jurisdiction, inter alia:
• Zawar Hussain v. State (2009 PCrLJ 705) (DB) (LHC)
D. THE SECOND REMAND ORDER DATED 25.03.2020:
(Annexure P/1 (Pg.6-12) CM 3/2020 in WP 17809/2020)
1. The Second Remand Order suffers from the foundational mistake as the
learned Judge does not even choose to determine whether:
o The prisoner presented before him had been kept in lawful custody?
o Whereas the learned Judge had to examine, at least ex facie and on the basis
of admitted facts, the legality of:
• Warrant of Arrest; and
• The First Remand Order.
2. The learned Judge would thus have concluded that the prisoner was in
unlawful custody and his order ought to have:
o remedied the wrong at least by denying further physical remand to NAB
and towards that logical end:
• To have discharged the prisoner under S. 63 of the CrPC (without, of
course, restraining, if so found desirable, NAB to continue its
investigation, for whatever its worth).
• And it may not have been desirable, in any case, to waste public
money and the precious time of investigators in unraveling facts
civil and private transactions more than 34 years old.
• After all the law cannot become a hand maiden of someone’s
vendetta.
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3. Instead the learned Judge proceeded to believe the ipse dixit of NAB and
granted the remand it desired despite the fact that:
o The prisoner before it had been illegally kept in custody;
o And the learned Court had a duty to inquire into just fact.
4. However, for the purpose of the instant submissions (for interim release or
bail) the Court made a foundational observation. This is significant as it comes
from the prospective Trial Court which, in normal cases, itself has the power
to grant bail, though not under the NAB law. This critical
observation/admission is that:
o Both the NAB as well as the learned Trial Court conceded that this was a
CASE FOR FURTHER INQUIRY. That observation is sufficient for
grant bail.
o Even if, therefore, the second remand order be deemed valid (though not
conceded, inter alia, in light of Yusuf Ali’s case, ibid) it provides itself a
sufficient and statutory ground for bail in that both the NAB and the
learned Court admitted that it is a case for further inquiry.
o S. 497(2) CrPC provides that: ‘If it appears to such officer or Court at any
stage of the investigation, inquiry or the trial.….. that there are sufficient
grounds for further inquiry into his guilt, the accused shall, pending such
inquiry, be released on bail .…..’
o In the Second Remand Order, both the NAB and the learned COURT
concede that it is a case for further inquiry. This is a statutory ground for
bail.
E. The crux of the prosecution case is that:-
➢ Under the exemption policy of the LDA Johar Town Scheme the owners
surrendering their land through the LDA were entitled to 15 plots and a
total of 30 % of their original holding 70 % would be taken over by the
LDA
o NAB further alleges that since the Petitioner accused obtained 54
plus kanals of land each of one kanal, but since he/previous owners
had obtained 54 kanals, they had violated the Policy.
o There is a simple fallacy in this reckoning by the NAB. The fact
overlooked by the NAB is that the Policy grants the right to retain 15
kanals to “every” owner.
o Hidayat Ali Etc. being 7 owners were in fact entitled to 15x7=105
plots. But their entitlement was capped to 30 % by the Policy.
o 30 % of 180 Kanals comes to 54 Kanals.
o NAB has misread the Exemption Policy by not adverting to the word
“ every” owner.
o As to excess land payment was made at the price required. This is a
matter of record.
o The alleged inclusion of road may be seen in the perspective as no
road, at that early time, had been constructed or even demarcated at
that time.
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F. While the honourable court cannot go deeper into evidence and facts, it will be
seen that in law alone the NAB has failed to meet the standard required by the
NAB (2nd amendment) Ordinance promulgated on 27.12.2019.
➢ Under article 89 of the Constitution an Ordinance has the force of an Act of
Parliament.
➢ The Ordinance remains in the field for the time being.
➢ The standard prescribed by the ordinance for any NAB prosecution have
not been met in this case as the required particulars have not even been
mentioned in the warrant of arrest, the application for remand, the remand
order or in the reply filed by NAB in this petition.
➢ As such no offence is made out under the NAB Ordinance as presently in
force.
➢ The amendment made on 27.12.2019 while the Petitioner was arrested on
12.03.2020.the Ordinance was/is in force at that time.
➢ Since in law no offence is made out the Petitioner deserves to be discharged
of the offence for the time being even as the investigation may continue.
G. MALICE:
Malice has been specifically pleaded in the Writ Petitions. It was however
specifically pointed out to the Hon’ble Judges that the learned senior counsel
was deliberately refraining from spelling it out in verbal arguments because it
adversely reflected upon the conduct of a gentleman who had held very high
offices in the field of law and any elucidation could be a resurgence of blame
in the media and public discourse, on a highly respected institution in the
media. It was suggested that while the Petitioner and the Accused, in the
respective Writ Petitions, did not intend to give up the ground as questions of life
and liberty depended upon it, they, out of respect for the institution, do not want to
unfold the sordid details and unseemly affair but may not be taken to have given
up that ground.
It is thus necessary that the accused/detenu/Petitioner be:
i. Discharged;
ii. Released on conditions prescribed by this Hon’ble Court;
iii. Granted bail, and granted ad interim bail in the meantime.
AITZAZ AHSAN & ASSOCIATES