Jang-Geo Editor-in-Chief moves Supreme Court: Setting aside of LHC order, release on bail sought

ISLAMABAD: Editor-in-Chief Jang/Geo Group Mir Shakil-ur-Rahman on Friday requested the Supreme Court to set aside the order passed by the Lahore High Court (LHC) dismissing his post-arrest bail petition in a case relating to a property transaction that took place 34 years ago.

Mir Shakil-ur-Rahman filed a petition in the apex court for leave to appeal under Article 185(3) of the Constitution for grant of leave to appeal against the order passed by the LHC on July 08, 2020 dismissing his post-arrest bail petition. He prayed the apex court to convert his petition into appeal and set aside the order passed by the division bench of LHC dated July 08, 2020 and he may very graciously be released on post-arrest bail. Senior lawyers Khawaja Haris, Amjad Pervez and Faisal Siddiqui will appear on behalf of Mir Shakil-ur-Rahman.

The National Accountability Bureau (NAB), through its chairman, DG NAB, NAB Complex, Thokhar Niaz Baig, Lahore, and Muhammad Abid Hussain, Assistant Director/Investigation Officer, NAB Complex, Lahore, have been made respondents in the matter.

A two-member bench of LHC comprising Justice Sardar Ahmed Naeem and Justice Farooq Haider on July 08, 2020 had dismissed the post-arrest bail petition of Jang/Geo Editor-in-Chief Mir Shakil-ur-Rahman in a case relating to a property transaction that took place 34 years ago.

On Friday, in the petition it was submitted that the petitioner received a call up notice, dated February 28, 2020, purportedly with reference to Complaint Diary No.769/20, and issued by one Binish Nauman, Deputy Director (Coord) Complaints Verification Cell. He contended that the contents of this notice conveyed in unambiguous terms that it was being issued during the process of complaint verification, with respect to a matter that was 34 years old, and called upon the petitioner to “appear in person with complete record/documents to record your plea pertaining to illegal allotment of 54 x 1 plots in Block H, Johar Town, Phase-II”.

Notwithstanding the fact that the law (re: Section 19 of the NAO, 1999) provides for the summoning of any person through a call up notice only during the course of an inquiry or investigation, and not during any complaint verification process, the petitioner went to NAB’s Lahore Office at Thokar Niaz Beg on 05.03.2020, as required by the said call up notice, it was submitted.

At the NAB office, the petition contended that the petitioner (Mir Shakil-ur-Rahman) was interrogated by some NAB officials with respect to 54K-4M of land exempted in favour of the petitioner’s predecessors-in-interest by LDA in the year 1986 against acquisition of 180K-18M of land. It was further submitted that since this was a 34 years old matter, the petitioner had taken with him some notes that he had jotted down from memory and whatever documents were available with him, and these notes and documents he shared with the NAB officials who met him on 05.03.2020, but it appeared from the conduct of these officials that they were not really interested in what the petitioner had to say, they flatly refused to provide any questionnaire to him, and even a copy of the written reply that he had hurriedly typed out in response to the call up notice was reluctantly received by them, after he had signed it in their presence, though with a caveat at the end in his own hand.

According to the petition, on March 11, 2020, the petitioner received another call up notice (dated March 10, 2020) requiring him to appear, on March 12, 2020 at 3:00pm, before Ms. Nirmal Hasni, Deputy Director, Complaint Verification Cell, NAB Complex, Thokar Niaz Beg, Lahore. It was contented that this second call-up notice was also issued at the complaint verification stage, for which there is no provision in law. Moreover, in this second call-up notice, he contended that there was neither any mention of the earlier call-up notice dated 28.02.2020, nor of the visit of the petitioner to the NAB office on 05.03.2020, as required by the earlier call up notice, or of the response submitted by the petitioner in writing on 05.03.2020.

However, a questionnaire was annexed with this call-up notice, and the petitioner was called upon to bring with him a “comprehensive reply” to this questionnaire on 12.03.2020. It was contended that from the very outset, the petitioner was convinced that the re-opening of a 34 years old matter relating to exemption of plots with respect to which neither the LDA nor any other authority or owner or exemptee of land had raised any grievance, inevitably involved consideration extraneous to law, yet he had visited the office of the NAB to explain his position, even though in response to illegally issued call up notices, as he is convinced that he has not committed any wrongdoing in this matter.

“The factum of ingrained malafides involved in the initiation and continuance of proceedings against the Petitioner under the NAO, 1999 in this 34 years old matter of exemption of land can be well gauged by the manner in which the chairman NAB at Islamabad and the officials of NAB in Lahore acted at tandem with each other on 12.03.2020 to bring about the arrest of the petitioner,” it was contended.

It was submitted that on March 12, 2020 the day when the petitioner was called to the NAB office at Lahore at 3:00pm, for submitting his answers to the questionnaire attached with the call up notice issued when the matter was still at the complaint verification stage, firstly, the chairman NAB proceeded to delegate to DG NAB, Lahore, to authorise an inquiry in the petitioner’s case vide letter bearing No.F.No.3-1(1) (7599)L/MW-I/NAB HQ/2020 dated 12th March, 2020.

Secondly, on the same day, i.e. 12.03.2020, Shahzad Saleem, Director General NAB Lahore, acting in alleged exercise of powers conferred on him by chairman NAB, as aforesaid, purportedly under section 34-A, NAO, 1999, directed Muhammad Abid Hussain, Assistant Director IW-II NAB Lahore, to hold inquiry and submit final inquiry report for the appraisal of the competent authority (re: Letter No.1(9)HQ/2173/NAB-L dated 12.03.2020).

Thirdly, on the same day, i.e. 12.03.2020, the chairman NAB issued, from Islamabad, warrants of arrest of the petitioner, in purported exercise of power under section 18 (e) and 24 (a) of NAO, 1999 (vide letter bearing No.6(8)/2750 Dir CN Sectt-NAB/2020 dated March 12, 2020), and, fourthly, on the same day, i.e. 12.03.2020, grounds of arrest of the petitioner, which were neither mentioned in nor as attachment to the warrants of arrest issued by the chairman NAB as aforesaid, nor otherwise indicated as to at what place, on what date and by whom these had been drawn, were handed over to and got received from the petitioner in the NAB office at Thokar Niaz Beg, Lahore.

The petition contended that although as per the contents of the grounds of arrest served upon the petitioner, these were issued on the basis of “evidence collected so far”, the documents relied upon by the NAB themselves establish that not a single witness’ statement had been recorded, nor any document had been taken into possession on or before 12.03.2020.

“Up to the morning of 12.03.2020, the complaint made to NAB against the petitioner was still at the verification stage, while the inquiry itself was authorised on the said date.”

The petition questioned as to whether the learned division bench of the LHC has dismissed the writ petition and denied bail to the petitioner, through gross misreading and non-reading of the facts, the record, complete misconception of the applicable laws and the obvious ulterior motives apparent from conduct of the respondents?

It was further questioned as to whether the arrest and the continued incarceration of the petitioner pending trial is not only violative of the principle of presumption of innocence, it is also tantamount to punishing the petitioner without a trial and, as such, is violative of the fundamental right guaranteed to the petitioner under Articles 9, 10-A, 14, 15 and 25 of the Constitution, and of his constitutionally mandated right to treatment in accordance with law as guaranteed by Article 4 ibid?

“Whether, in any case, non-payment of a sum of Rs143,530,000 to LDA as price calculated on the basis of current market value of the excess land (of 4k-12M) sold to the petitioner in the year 1986 could be made the basis for framing a case against the petitioner for alleged offence falling under any provision of NAO, 1999, without compliance of the mandatory pre-condition of 30 days notice as stipulated by Section 5(r) of NAO, 1999, and, in so far as no such notice was ever served upon the petitioner in terms thereof, the petitioner’s arrest and detention on this basis is void ab initio and violative of his fundamental rights under Articles 4, 9, 14, 15 and 25 of the Constitution?” it further questioned.

Similarly, the petition questioned that as to whether the refusal of bail to the petitioner by the high court, and thereby his continuous incarceration, inter alia, for alleged non-payment of purported dues to LDA, without there being any adjudication thereof by a competent court of law after observing due process, is not violative of the petitioner’s fundamental right guaranteed under Article 10-A of the Constitution?

It was submitted that the petitioner is suffering from tinnitus, sleep apnea, breathing disorder, hyperventilation and acute anxiety, his recent medical tests have revealed a growth in his kidney, two cysts in the prostate, and blood in the urine, while in judicial custody the doctors who checked him expressed suspicion of malignancy, two of his siblings, one brother and a sister, have died from cancer.

It was further submitted that the petitioner was in continuous incarceration, while he carries a family history of cancer, in that six of his nine family members, including his parents, have suffered from this lethal disease, has to be kept under constant medical surveillance in home conditions and free to move for treatment from his doctors, his continued incarceration is aggravating his acute anxiety disorder which consequently further aggravating his lethal sickness.

“As the petitioner is in incarceration since last six months the sickness from which he is suffering are further aggravated and his overall condition is deteriorated badly, while he also stands deprived of discharging his duty towards his mother who is in the twilight of her life, being 94 years of age, has recently lost two of her children as aforesaid, does not qualify his continued incarceration under the afore noted circumstances as a case of extreme hardship, thereby entitling him to be released on bail,” it contended.

The petitioner prayed the apex court to convert his petition into an appeal and set aside order passed by the division bench of LHC dated July 08, 2020 and he may very graciously be released on post-arrest bail. It was submitted that the petitioner is ready and willing to furnish bail bonds to the entire satisfaction of this august court and undertakes to appear before the trial court on each and every date of hearing to be fixed in the trial.