NADEEM MAJEED vs THE STATE and others

' RANA BHAGWANDAS, ACTG. C.J.--- Petitioner is aggrieved by Balochistan High Court judgment, dated 17-5-2007 dismissing his writ petition calling into question the registration of F.I.R. No,163 of 2006 at Police Station Brewery, Quetta on 28-11-2006 on the basis of order, dated 27-11-2006, passed by learned Additional Sessions Judge, Quetta, and declaration that the NAB Authorities at Quetta had no jurisdiction to take cognizance of the offence, to arrest the petitioner and to put him behind the bars for the offences under sections 408 and 420, P. P.0

2. Precise facts appear to be that one All Shafai lodged a petition under section 22-A, Cr.P.C. Before the learned Sessions Judge, Quetta, seeking registration of an F.I.R. Against the petitioner, co- accused Jawaid Majeed and Dr. Ayub Khan. Akbari, for the offences of committing fraud and cheating with him and many others by collecting huge amounts for the grant of franchise stores.

An agreement to this effect appears to have been executed on 17-11-2005 between the complainant and Jawaid. Majeed, the sole proprietor of Golden Key International through the petitioner as his attorney. It was alleged in the F.I.R. That Dr. ,Ayub Khan Akbari enjoying public confidence collected huge amounts on different days from the complainant and others but did not abide by his commitment. At later stage names of the petitioners as well as co-accused Jawaid Majeed were also disclosed in the F.I.R. As being privy to the contract between the parties. It is stated that petitioner was taken into custody by Brewery Police, Quetta, on 26-3-2007. Initially he.

Was remanded to police custody and later sent to judicial custody. He was ordered to be released on bail by learned Sessions Judge, Quetta on 21-5-2007 but on the same day NAB Authorities secured his custody from the jail authorities on the basis of press clippings, where after he is in custody of NAB pursuant to a remand order and warrant of arrest issued by the Director-General NAB, Quetta dated 11-4-2007.

3. Petitioner applied for his release on bail on the grounds inter alia that he was involved in a private dispute having no nexus with any public office or a public service; that NAB had no jurisdiction to inquire into an investigation in relation to the affairs of civil nature between the private persons and lastly that his arrest .After his release by a competent Court of law was illegal and mala fide. The petition came up for hearing before a Division Bench of the Balochistan High Court which has been dismissed expressing the view that in terms of section 9(a)(iii) expression "person" would include a private person who would be amenable to the jurisdiction of NAB for the purpose of investigation and further proceeding under the NAB Ordinance, 1999. For arriving at this decision, the High Court relied upon a judgment delivered by the Lahore High Court in the case reported as Zulfiqar Ali v. Chairman NAB PLD 2003 Lah.

593. It may be observed that a contrary view has been expressed by a Division Bench of Peshawar High Court in Kabir Khan v. The State 2003 YLR 1607 whereas leave to appeal has been granted by this Court against the judgment of the Lahore High Court in Zulfiqar Ali (supra). Furthermore in another case leave granting order is reported as State v. Nasim-ur-Rehman 2004 SCM R 1943.

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4. After hearing learned- counsel for the petitioner and Dr. Muhammad Asghar Rana, Additional Deputy Prosecutor-General NAB and examining the record, we are inclined to grant leave to appeal .Against the impugned judgment to consider inter alia the following questions of law:--

(i) Whether the NAB authorities could assume jurisdiction in relation to scheduled offences committed by private persons having no nexus with any public office or .a public service?

(ii)Whether the petitioner can be proceeded against by the NAB authorities in the absence of any allegation of abetment or connivance with a person holding public office or discharging his functions in connection with the affairs of Federation or the Provinces?

(iii) Whether arrest of the petitioner and assumption of jurisdiction on private complaint of a citizen was illegal, mala fide and without jurisdiction?

5. In our view, the petitioner has made out a fit case for the grant of bail in the peculiar facts and the circumstances of the case, and bail cannot be withheld by way of punishment.

6. Tentatively speaking from the facts stated in the complaint before the Sessions Judge, Quetta and incorporated in the F.I.R. Lodged at Burewery Police Station, it appears that the entire allegations with regard to fraud and cheating are directed against Dr. Ayub Khan Akbari whereas the name of the petitioner appears much later at the stage of entering into franchise agreement between the complainant and Jawaid Majeed through the petitioner as attorney. Moreover, the petitioner has been behind the bars with the NAB authorities since 21-5-2007 without any reference having been filed before Accountability Court so far.

7. In our view, there are reasonable grounds to believe that the petitioner may not be ultimately found guilty of the charges against him. Even otherwise since leave to appeal has already been granted to examine the question of jurisdiction of the NAB authorities, as an interim relief, we direct release of the petitioner on bail subject to furnishing P.R. Bond in the sum of Rs,5,00,000 with two sureties in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.