Jang-Geo chief’s arrest against NAB’s businessmen policy: Aitzaz Ahsan

LAHORE: Barrister Aitzaz Ahsan told the Lahore High Court on Thursday that the National Accountability Bureau arrested Jang/Geo Editor-in-Chief Mir Shakil-ur-Rahman in a false property case for highlighting news against National Accountability Bureau (NAB) authorities. A two-member bench headed by Justice Sardar Naeem Ahmad was hearing two petitions challenging Mir Shakil-ur-Rahman’s arrest in a 34 years old property case, grant of physical remand by an accountability court and seeking his post-arrest bail.

Extending his arguments before the bench, Aitzaz said his client's arrest was illegal and premature as he was arrested at the complaint verification stage, which was not permissible under the law. He said the entire case could be resolved with the relevant documents and that all records are present with the Lahore Development Authority. “However, for 20 years, the NAB did nothing," he said, adding that this case does not fall under the NAB jurisdiction because it was a private civil transaction between two parties.

 Read: Petition filed by Mir Shakil-ur-Rahman against NAB chairman

He argued that the concession given to his client by the LDA was not an unconstitutional or unlawful act. The sale and purchase of the land in question was a private civil transaction. He pointed out that Mir Shakil-ur-Rahman was not the original allottee of the 54 plots of exemption. It was a laid down principle of law that a remand order should be well reasoned but the trial court twice granted physical remand of his client without mentioning any reason in its order.

Read: Petition filed by Mrs Shahina Shakil against NAB chairman

He pointed out that the accountability court did not apply Section 24 of the National Accountability Ordinance 1999 in correct perspective. He argued that Mir Shakil-ur-Rahman is the editor-in-chief of the Jang/Geo Group, the oldest, largest and the most popular media group in Pakistan and he is currently under the illegal and unlawful arrest and detention of the NAB. He said for more than 45 years, the petitioner (Mir Shakil-ur-Rahman) has been working as a journalist and in the news business in Pakistan and since his father’s lifetime. He launched Daily Jang from Lahore, setting up a new benchmark for Urdu journalism in Pakistan.

Read: NAB's reply to petition filed by Mrs Shahina Shakil 

He said over the last 60 years, the Jang Group’s insistence on pursuing an independent media policy has repeatedly put the Jang Group at odds with unhappy governments, both civilian and military governments that wanted a compliant media willing to render favourable media coverage so that the sovereign people of Pakistan would not be able to assess their lack of performance and shortcomings.

Read: NAB's reply to petition filed by Mir Shakil-ur-Rahman

He said the result of the Jang/Geo Group’s insistence on pursuing an independent media policy has meant that the daily Jang newspaper was and continues to remain the most popular Urdu newspaper in Pakistan and its English newspaper, The News International, has remained one of the leading newspapers in the country, while the Geo News was and continues to be the most credible and most popular news channel in the country. He pointed out that the Geo News in public interest to safeguard the sanctity of the accountability process broadcast news against NAB authorities and it infuriated NAB officials. The Geo News management, its anchors, especially the anchor and producer of the programme “Aaj Shahzaib Khanzada Ke Saath” and particularly the petitioner started facing threats that the NAB would get the Pakistan Electronic Media Regulatory Authority (PEMRA) to ban the programme.

He said it was in this background, that on the behest of the NAB, the PEMRA started issuing multiple notices to the Geo News and its anchors and started imposing fines every time the performance of the NAB was discussed on the Geo News. Finally, the Geo News approached the LHC four months ago (WP No 61353/2019) just to seek directions by the honourable court to the PEMRA “not to treat the NAB as a state institution as the NAB was an investigating body just like the Federal Investigation Agency. The same petition is still pending and the PEMRA had yet to file a reply.

He said as the government and the NAB anger grew, the federal government and governments in Punjab and KP imposed a complete ban on any display advertisements to any newspaper or channel of the Jang/Geo Group. A fortnight ago, vide WP No 14356/2020, the Jang/Geo Group challenged the illegal discrimination by the federal and provincial governments, their Public Information Departments in pursuing a practical ban on any advertisements to any newspaper or channel of the Jang/Geo Group.

The government action in boycotting the Jang/Geo Group with regard to distribution of advertisements is totally illegal as advertisement distribution is not the personal property of the government but a state asset that has to be distributed in accordance with the law, he said.

He said the NAB action led to a collapse in business confidence and imprisonment of almost all the opposition leadership, including, former president Asif Ali Zardari and former prime ministers Nawaz Sharif and Shahid Khaqan Abbasi.

Meanwhile, the government realized that the NAB’s unchecked and daily harassment of private citizens, businessmen and bureaucrats had completely damaged, amongst others, business confidence and it was a major impediment in the government’s plan to put the country on the path to growth. He said the business community and the bureaucracy were constrained to lobby with the powers-that-be and had brought to the notice, amongst others, of the prime minister and other high officials their concerns about the state of the economy. It was thus that the government itself promulgated an ordinance on October 27, 2019 amending the NAO 1999, seeking to protect private citizens, businessmen and bureaucrats who had become virtually dysfunctional. That in a way is a kind of an admission by the government that the NAB had gone out of control and it needed to be reined in at least to the extent of businessmen/bureaucracy. He said on October 08, 2019, the NAB had already issued the following directive/policy guidelines regarding businessmen, which states:

a. A notice, covering the details and reasons for alleging the person in the case, will be issued for provision of a written reply.

b. After receipt of reply, if the same is found unsatisfactory or needs further explanation, a questionnaire will be delivered.

c. The DG Regional NAB will examine the reply of each question and if found unsatisfactory, the businessman will be summoned for personal appearance as per law and SOP.

Aitzaz said on February 2, 2020, NAB Deputy Director (Coordination), Complaint Verification Cell, without following the afore-stated SOP, summoned the petitioner (Mir Shakil-ur-Rahman) to appear before the NAB Lahore Office on March 05, 2020 along with “complete record” of a matter which had been occasioned 34 years ago and was in the stage of ‘complaint verification’. In fact, as evident from the notice itself, it has been issued by the Complaint Verification Cell.

In fact, the notice was received on March 3, 2020 whereas as stated above, it required the petitioner’s appearance on 05.03.2020. Despite the inadequacy thereof, the petitioner, as a law-abiding citizen, appeared in the office of the NAB Lahore. On the said date, the petitioner took with him some notes, mainly from his memory of 34 years ago and the material he could lay his hands on and offered it to NAB officials. The petitioner stated that it might be more convenient if they issued him a specific questionnaire. They refused to do so, however, stating that he could make out the questions from their conversations and record them for himself. These came to about 13 questions which the petitioner wrote with his own hand whilst noting verbal confirmation of the same. In the hope of facilitating an end to this unwarranted action, he had earlier hurriedly typed out a response to the ‘non-notice’, ‘non-questionnaire’, which he now sought to submit to the NAB officials concerned, but they were not willing to take it from him although they received a copy after he had signed it in their presence and added a caveat in his hand under it. (This too, however, was seized by the NAB when all documents with him were retained by the NAB on 12.03.2020, at the time of his unlawful arrest).

Aitzaz said it was evident from the facts, not only were the binding provisions of the SOP blatantly ignored, no questionnaire which was in accordance with the SOP was ever served upon the petitioner. The actions of NAB officials themselves were thwarting whatever purported complaint verification process they supposedly were undertaking.

On March, 10, 2020, the petitioner received a notice along with certain queries from the NAB, with summons and directions to appear before NAB officials again on 12.03.2020. Thus, this still was not a questionnaire as mandated per the SOP. Despite the extreme paucity of time granted, the petitioner began an exercise to address the queries and drafting of replies thereto. He could obviously not complete this process in the short period granted as would be evident from the draft replies/submissions themselves (which are all presently in the possession of the NAB).

It can be ascertained from the documents in the NAB possession that the ‘replies’ to the queries contained therein were for the personal use of the petitioner himself. They were of a tentative draft nature, and, in no case final and ready for submission to the NAB. He said the proceedings were meant only to verify the complaint and had not reached the stage where the petitioner could be put on notice. The petitioner (or any reasonable person for that matter) could not be expected to apprehend that he would be arrested at such a preliminary stage of the probe. He thus arrived at the NAB office in Lahore on March 12, 2020, carrying with him personal documents, including the tentative drafts he had made for his own use and review before finalizing for submissions.

He said it seemed obvious to the petitioner in hindsight that the NAB was not interested in any question or answer, but while the petitioner was on the NAB premises in Lahore, out of good faith and cooperation with the NAB, the officials told him that he had been put under arrest pursuant to a warrant of arrest issued by the NAB chairman in Islamabad at the very same time and day. The petitioner was also deprived of three cellphones, personal briefcase with private papers, preliminary and incomplete draft replies as well as the record he took with him including photocopies.

He said the arrest of the petitioner on March 12, 2020 at the complaint verification stage was in blatant violation of the SOP as well as recent pronouncements of the superior courts. In addition, the petitioner sought to exercise his right to meet his counsel and family members, but he was denied this right. He was made to sign certain documents, of which he had neither copies nor exact recall of contents, due to untold stress caused on being informed that had been unduly arrested. He said his client was kept in an unhealthy cell in solitary confinement that night despite the fact that he is an old person and suffering from different ailments.

On March 13, 2020, the petitioner was presented before an accountability court before which his counsel submitted that the petitioner’s arrest was contrary to the SOP and he had not been given any proper chance to explain his point of view, that his detention was thus illegal and that in the circumstances, it was imperative for the accountability judge to discharge him rather than remanding him either to the NAB custody or even judicial custody. The accountability court judge contrary to the law and facts disregarded the submissions on behalf of the petitioner and through a void and non-speaking order handed over his personal/physical custody to the NAB for eleven days.

The petitioner is a law-abiding citizen and innocent of the wild and baseless allegations levelled against him on an ancient matter legally and lawfully conducted 34 years ago. The NAB has acted in a mala fide manner against the petitioner, as the head of the Jang/Geo Group because of the continued factual reporting and commentary in its various published items and televised broadcast. He said the land was purchased by the petitioner/his family from private persons, in a private transaction, and exemption obtained as per the Exemption Policy of the LDA with all dues having been paid and the land being reflected in their returns there is nothing that can justify intervention by the NAB, especially after more than three (3) decades. All evidence to this effect is documentary and already available with the NAB. It is therefore discriminatory and lacks the principle of proportionality as propounded by the Islamabad High Court in its judgment (titled Amjad Mustafa Malik vs DG NAB) whereby the court held that a person cooperating with the NAB ought not to be arrested because the fundamental right of liberty of a citizen is a paramount right. The judgment also asserts that a man is to be presumed innocent, and to be treated with decency as an innocent citizen until proven otherwise.

He said the arrest of the petitioner is entirely illegal and without lawful authority. The NAB has acted contrary to the SOP which is a binding force and cannot be completely bypassed and ignored.

He said the malice in the NAB actions floats on the surface. The honourable prime minister, to the best of the petitioner’s knowledge, shockingly made a claim before the media that very soon the petitioner was going to face charges from the NAB. In fact, for the last four years, he has been vowing to teach a lesson to the petitioner.

He said the NAB conduct amounted to violation of the petitioner’s rights as guaranteed under Article 4, 9, 10, 10-A, 25 of the Constitution. He said the petitioner cannot be saddled with any liability when baseless allegations against him are yet to be put to the test of evidence. Benefit of doubt must be given to the petitioner at all stages.

He prayed to the court to declare the warrants of arrest dated 12.03.2020 as illegal, arbitrary, mala fide and set it aside accordingly. He also prayed to the court to declare that the conduct of the accountability court in refusing to provide reasons for the remand order dated 13.03.2020 (and orders issued subsequent thereto) as void, illegal, without lawful authority and of no effect in law and to set them aside accordingly.

It was also prayed to the court to direct the release of the petitioner forthwith and restrain the NAB from acting in violation of the directive/policy guidelines and arresting the petitioner in any other manner in an action with the allegations that are the subject matter of the instant petition.

In a reply filed with the court, the National Accountability Bureau (NAB) has said there is no legal infirmity or jurisdictional defect which could justify judicial interference at this stage of the proceedings. “The bureau is conducting the instant proceedings strictly in accordance with the law and the case is under probe. In these circumstances, a writ petition cannot be issued to thwart the ongoing process,” stated the NAB.

About the alleged illegalities in the land transaction, the NAB explained that according to the Exemption Policy formulated for Johar Town, Hidayat Ali and others were entitled to exemption of maximum 15 plots measuring one Kanal each and the rest of their entitlement was to be met through allocation of plots of lower category. However, in this case, Mir Shakil-ur-Rahman being general attorney of Hidayat Ali and others was given 54 plots of exemption measuring one Kanal each in a compact form in a single block, which is illegal and against the Exemption Policy. The NAB stated that the Exemption Policy of Johar Town envisages that every effort will be made to allocate a plot or plots to the exemptee on or around the land acquired from him. It said Mir Shakil-ur-Rahman failed to justify the whole alleged illegal acts during his appearances before the investigation team when he was also given a questionnaire. It argued that the arrest warrants of Mir Shakil-ur-Rahman were issued by the NAB chairman lawfully and after authorization of inquiry. The NAB asked the court to dismiss the petition for being not maintainable.

Earlier, Mir Shakil-ur-Rahman submitted an application to the court to seek permission to file certain documents to prove his innocence. The petitioner said he wanted to place on record the second remand order of the accountability court issued on March 25, 2020, ground for arrest on March 12, LDA Exemption Policy regarding Johar Town (1983), Registered general power of attorney, application by seven land owners through their general power of attorney (the petitioner) for interim development of land (4.6.1986), registered sale deed (29.9.86), LDA completion certificate (22.4.1989), correspondence development and surcharge (1987-92), registered gift deeds (1997) and business credential of the petitioner.

Aitzaz requested the court to release Mir Shakil-ur-Rahman in the wake of the coronavirus pandemic as the IHC and the Sindh High Court had ordered to release prisoners

The NAB also opposed the application and requested the court to dismiss the same. It stated that the Supreme Court of Pakistan had suspended the release order of the IHC and the SHC and ordered no further release of prisoners.

The court will resume hearing on April 7 when the NAB prosecutor will extend his arguments.