Personal property case: LHC rejects bail pleas, Jang, Geo Editor-in-Chief given right to reengage court

LAHORE: The Lahore High Court (LHC) on Tuesday dismissed two petitions seeking release of Jang/Geo Editor-in-Chief Mir Shakil-ur-Rahman from the National Accountability Bureau (NAB) custody after declaring his detention illegal.

Separately, an accountability court on Tuesday extended the physical remand of Mir Shakil-ur-Rahman for 11 days, till April 18, in a case pertaining to the purchase of a piece of land more than 30 years ago.

A two-member LHC bench, headed by Justice Sardar Naeem Ahmed, rejected the petitions, filed by Mir Shakil-ur-Rahman’s wife Shaheena Shakil and Mir Shakil-ur-Rahman himself in connection with a pending inquiry with the NAB against the senior-most editor of Pakistan's largest media group regarding a private property, purchased more than three decades ago. The court observed in its order that as the matter is still being inquired and is at its initial stage, the petitioner may avail the remedy for his release on bail at an appropriate stage if so advised.

It is also clarified that the observations made in the order are based on available material and tentative in nature, thus, the learned trial court shall not be influenced thereby in any manner, the court said.

As the hearing commenced, NAB Special Prosecutor Faisal Raza Bukhari told the court the bureau was working on this matter since December 26, 2019 when a complaint was received. Subsequently, a call-up notice was issued on Feb 28, 2020 to Mir Shakil-ur-Rahman for March 5. He said the petitioner’s plea that no questionnaire was issued or received is wrong. He pointed out that the second call-up notice was issued to Mir Shakil-ur-Rahman on March 10 along with the questionnaire containing 26 questions to come on March 12 with replies to questions. On March 12, the NAB chairman authorized inquiry and also issued arrest warrants.

He said the bureau’s chairman had been informed of all facts regarding the case via video link. The NAB chairman was being given all updates regarding the case and the investigation was being conducted on his instructions. He said Nawaz Sharif as chief minister granted exemption to Mir Shakil-ur-Rahman in 1986 and at the time, two roads were also included in the exemption land. He pointed out that Mir Shakil-ur-Rahman was given extraordinary favour by the then chief minister.

He said Nawaz Sharif had misused his authority in approving a summary of LDA allowing exemption of 54-Kanal plots at one place. He added that two roads measuring two Kanals were also allotted. These roads were in the approved plan of Johar Town. An application was given to the LDA by the general power of attorney on June 4, 1986 for interim development. However, the LDA approved the summary in misuse of its authority and instead of granting permission of interim development, the exemption of land was granted. He said Mir Shakil-ur-Rahman was allotted a complete block on the verge of the canal in violation of law. He said an accountability court granted Mir Shakil-ur-Rahman’s first physical remand on March 13, 2020 and the second remand order was issued on March 25. He said Mir Shakil-ur-Rahman was in the physical custody of the NAB and a bail petition could not be entrained during the physical remand.

In his rebuttal, the petitioner’s counsel Barrister Aitzaz Ahsan pleaded that the NAB had not mentioned anything about the video link in its reply submitted to the court. He noted that the bureau was admitting that the case was at the inquiry stage.

“The NAB is also admitting that the business policy applies to Mir Shakil-ur-Rahman,” argued Aitzaz. He reminded the court that the arrest warrants were issued while the inquiry was still being done. The lawyer urged the court to ask for the video recording of investigation proceedings against Mir Shakil-ur-Rahman.

“The NAB can keep on doing its investigation but Mir Shakil-ur-Rahman should be discharged from the case,” said Aitzaz. He added that the additional amount regarding the property had been submitted to the Lahore Development Authority, clarifying that there was no road when the property was allotted to Mir Shakil-ur-Rahman. He told the court that his client should be granted bail as he was ailing and old. He said Mir Shakil-ur-Rahman “was not running off anywhere” and that the court can ask for a surety bond for its satisfaction.

Aitzaz said the NAB had been probing a 34 years old property transaction of civil nature between private parties but the bureau had failed to give it colour of a criminal case. He said hundreds of thousands transactions regarding land sale and purchase took place in LDA and the transaction in question was one of those which was neither challenged in the court nor any one raised objection to its authenticity. He added that the NAB also did not utter a single word on the issue in its reply.

He said in exemption document, the word “every allottee” had been used. So every allottee was granted separate exemption and there were seven allottees of the land in question and importantly Mir Shakil-ur-Rahman was not one of the allottees. Aitzaz explained that the application was moved by seven owners and not by a single one. Mir Shakil-ur-Rahman was the attorney of seven owners and not the owner himself. It is like a lawyer submits Wakalatnamas of several petitioners on one page.

He pointed out that under the exemption policy, exemption could be granted up to 30 per cent of land to every allottee, therefore, exemption was granted to seven allottees namely Hakim Ali, Hadayat Ali, Sarwar Ali, Jahanian Bibi. Hameeda Bibi, etc. Hence, the case did not fall under NAB jurisdiction.

He explained that under the exemption policy every owner is entitled to 30 per cent of the land acquired by the LDA and that each owner is entitled up to 15 plots of one Kanal and then small plots of 10, 7 and 5 Marlas on requirements basis. The seven owners owned 180 Kanals plus land which was acquired by the LDA. Thirty per cent of which comes to 54 Kanals plus and 15 Kanals per owner comes to 105 Kanals but due to cap of 30 per cent, they were given 54-Kanal plots.

Land was allotted as per the Punjab Land Acquisition Act and the LDA Act. Section 30 of the LDA Act explains the punishment of any irregularities in land matter which should be applicable in this matter. Aitzaz said as per amendment made to Section 9 of the National Accountability Ordinance 1999 on December 27, 2019, the misuse of authority cannot be established unless it is shown that there is corroborative evidence of obtaining material benefit.

He said the NAB was acting whimsically and did not present any document signed by Mir Shakil-ur-Rahman, which proved his guilt. It was a matter between the then director general LDA and the chief minister and Mir Shakil-ur-Rahman had nothing to do with it. He said if a person asked his son to take care of guests and did so, what the fault of the guests was. There was no approved plan of Johar Town when the excess land of two proposed streets was allotted and the price of this excess land was charged. At that time, it was an open field and no roads were marked there. If Mir Shakil-ur-Rahman ever talked to the DG LDA, every person can talk to him. Mir Shakil-ur-Rahman had not asked to allot two streets or make one compact plot along the canal with a front of 9 plots, he added.

He said the case was based on documentary evidence and the NAB had withheld all documents including the questions prepared by Mir Shakil-ur-Rahman. There was no legal justification of arresting Mir Shakil-ur-Rahman as he was cooperating with the NAB. In the first reply, the NAB had said that communication with the NAB chairman was made on fax and now that they have come to another version that communication with the chairman was made through video link. Where is the fax record or video link record? What happened in the NAB Thana on March 12 was recorded by a CCTV camera. It should also be called, Aitzaz requested the court.

He said if NAB allegations were admitted true for the sake of arguments, it is punishable under LDA laws. To substantiate his arguments, he presented a judgment of the Supreme Court, which says that if two laws are applicable to an issue, the law which prescribes lesser punishment will be applicable. He reiterated that the NAB chairman did not apply his mind while issuing warrants of arrest against Mir Shakil-ur-Rahman because he was sitting in Islamabad and the inquiry was going on in Lahore and the NAB had admitted the same in its reply.

He said the NAB neither presented any documents which showed that Mir Shakil-ur-Rahman sought undue favour. In fact, the arrest warrants were issued earlier and the inquiry was launched later. The Supreme Court had taken a strong note of a NAB similar illegality in another case. He said the accountability court also did not explain the reasons for grant of remand and issued the order without applying its judicial mind.

Aitzaz stated that Mir Shakil-ur-Rahman was being punished for highlighting issue relating to an embarrassing video of the NAB chairman aired by the Geo News.

Meanwhile, Amjad Parvez, the other counsel for Mir Shakil-ur-Rahman, said his client never sought exemption from the then chief minister. He said under the exemption policy, the plots could be allotted closely. He contended that the call-up notices sent out by the NAB were illegal. He said Mir Shakil-ur-Rahman’s arrest and subsequent remand orders by the accountability court were done in violation of the law and had no legal value. He prayed to the court to declare Mir Shakil-ur-Rahman’s arrest warrants and remand orders illegal and release him from the illegal detention of the NAB.

The bench, however, after hearing the arguments from both sides, dismissed the petitions seeking Mir Shakil-ur-Rahman’s release.

Meanwhile, the National Accountability Bureau (NAB) produced Mir Shakil-ur-Rahman before Accountability Judge Jawadul Hassan around 9:15am, escorted by a large number of policemen.

However, the judge adjourned the hearing for a while when it was informed that Advocate Amjad Parvez, counsel for Mir Shakil-ur-Rahman, was busy at the Lahore High Court where the court was hearing the bail matter of the Jang/Geo Editor-in-Chief. It was informed by Advocate Muhammad Nawaz, who was representing Mir Shakil-ur-Rahman on the behalf of Amjad Parvez. He informed the court that if NAB did not want to seek physical custody of Mir Shakil-ur-Rahman, he could represent Mir Shakil-ur-Rahman; otherwise, Amjad Parvez would argue the matter.

However, the NAB prosecutor informed the court that the bureau would seek extension in physical remand of Mir Shakil-ur-Rahman. After which the judge adjourned the hearing for a while, saying that the court would wait till the verdict of the LHC regarding bail pleas of Mir Shakil-ur-Rahman. The court resumed its remand proceedings at 1pm when Amjad Parvez joined the proceedings after the LHC dismissed the bail petitions of Mir Shakil-ur-Rahman.

As the hearing commenced, the NAB prosecutor, Asim Mumtaz, implored the court to extend physical remand of Mir Shakil-ur-Rahman. He argued that bail petitions of the accused had been dismissed by the LHC. The prosecutor stated that the accused had challenged the grounds of arrest and previous remand order of the court in the LHC. On this, the judge intervened and asked whether it was relevant to the remand proceedings.

The prosecutor stated that he was just informing the court to set the record straight.

The judge again intervened, addressing the prosecutor to let him know about the investigation and come to the point as to why the bureau was seeking further physical custody of the accused.

The prosecutor informed the court that the bureau had sought record from the Lahore Development Authority (LDA) and had received major part of the record thus far. The prosecutor further said that now the bureau had sought original map of the Muhammad Ali Johar Town scheme from the LDA, as the bureau had to confront the accused with the map.

At this, the judge astonishingly remarked that whether the bureau had sought the whole map of the society.

The prosecutor stated that NAB had also sought record from the Public Relations Department of the Punjab government, according to which the government paid more than Rs20 million to Jang Group in three years 1985, 86 and 87 in terms of government publications, and the bureau had also sought further record from the PR Department.

The judge again intervened in amusement saying that “as I know Mir Shakil-ur-Rahman is the owner of Jang Group, and how the PR department information is relevant with the matter under discussion”.

To which the prosecutor tried to establish a link with reiteration of previous hearing arguments saying that the then chief minister Punjab Mian Nawaz Sharif favoured Mir Shakil-ur-Rahman and the same was done in exemption matter under discussion.

At this point, the judge questioned the prosecutor whether it could be the discretionary powers of the chief minister, and there was a possibility that he could have the powers to relax the rules in this regard. The judge remarked that everyone had a desire to get a better piece of land and asked the prosecutor to provide him the actual summary which was forwarded by the then DG LDA to the then chief minister Punjab.

The prosecutor reluctantly agreed with the judge but said that 30 per cent exemption of 180 kanals was 54 kanals. Mir Shakil-ur-Rahman had the right to have 15 plots of one kanal each, but he was awarded 54 kanals, added the prosecutor.

The prosecutor further said that if a large piece of land was exempted, then plots of small sizes were awarded.

To another query by the judge regarding the inquiry stage, the prosecutor informed the court that the bureau had recorded a statement of former DG LDA under 161 CrPC. The prosecutor said that the former DG had been summoned again and he would be confronted with Mir Shakil-ur-Rahman. Moreover, the accused would be confronted with one Javed Bukhari, the principal secretary of the then chief minister Punjab along with the previous private owners of the land under discussion. The prosecutor implored the court to extend physical remand of the accused for efficient conclusion of the inquiry.

Advocate Amjad Parvez, counsel for Mir Shakil-ur-Rahman, started his arguments with a clarification that in the pleas at the Lahore High Court previously, the remand documents of Accountability Court Judge Jawadul Hassan were not challenged nor were discussed.

The counsel said that it seems that the NAB prosecutor had not read the documents which were submitted or discussed in the LHC, saying that both forums had a different scope of the relief which could be provided to his client.

The counsel challenged the arguments of the NAB prosecutor outright, saying that NAB had devised a unique non-instrumental word ‘confrontation’.

Mir Shakil-ur-Rahman’s counsel wondered that now NAB had a plan to confront his client with the map of Johar Town. What kind of confrontation it would be, the counsel added.

Amjad further said that NAB had asked the LDA for a map. “What does Mir Shakil-ur-Rahman’s remand have to do with the LDA either giving or not giving the map?”

The counsel then again confronted the arguments of the NAB prosecutor while quoting the NAB documents which were submitted by NAB on last (March 25) remand hearing.

Amjad Parvez, while quoting and reading paragraph six of the NAB document, stated that the bureau had, in writing, accepted that the principal secretary to the then chief minister Punjab appeared before NAB and recorded his statement. The counsel then quoted paragraph eight of the document in which the bureau had stated that former DG LDA Humyun Faiz Rasul appeared before the NAB investigators and recorded his statement.

The counsel stated that the bureau had decided to confront his client with those persons who had already appeared before NAB and recorded their statements.

Moreover, NAB had decided to confront previous private owners of the land with his client, what kind of the confrontation it would be when there was no litigation between his client and the previous owners, the counsel added.

Amjad said the prosecution was relying on exemption document as prime piece of evidence. The bare reading of the exemption document revealed that exemption was not granted to a single person, as the word “every owner” had been used in the exemption document.

“There were seven owners of the land under investigation,” the defence counsel said. “The claim by NAB that there is only one owner of the land is false,” Amjad Added.

However, that would be deeper appreciation of the evidence which is not permissible at this stage, the counsel added.

Mir Shakil-ur-Rahman’s counsel argued that the case against his client was of documentary evidence but NAB had turned it into vengeance. “There is not any kind of recovery to be made from my client for which NAB is seeking physical custody of my client,” the counsel added.

The counsel argued that the court had to deal with the remand matter according to National Accountability Ordinance, but the parameters of the investigation were bound to Criminal Procedure Code (CrPC), and when there was nothing to recover from Mir Shakil-ur-Rahman, then there was no justification for extension of his physical remand, Amjad added. NAB is wasting court’s time as the NAB officials, on every hearing, come up with ordinary grounds, seeking physical custody of his client, Amjad added.

The counsel argued that all record had been provided to NAB and all persons concerned had recorded their statements before the bureau. “My client received the first notice from NAB on Feb 28 and, being a law-abiding citizen, he appeared before NAB without any hesitation.

“On the second hearing, the bureau arrested him without any reason,” Amjad added.

The court, after hearing arguments of both parties, reserved its decision for half an hour and later announced extension in physical remand of Mir Shakil-ur-Rahman for 11 days, till April 18.

When counsel for Mir Shakil-ur-Rahman was extending his arguments, a police official interrupted the court proceedings and informed the judge that a girl standing behind Mir Shakil-ur-Rahman was recording audio of the court proceedings. It irked the judge and he asked the girl to leave the courtroom and delete the audio file.

Later, the court was informed that the girl was a law student abroad, she was taking her notes and was not aware of the court norms in Pakistan. An apology was extended to the judge, who then allowed the girl to return to the courtroom. She also tendered her apology after returning to the courtroom, which was accepted by the judge.