ISLAMABAD: The Supreme Court on Monday held that further detention of PPP stalwart Syed Khurshid Shah, who had remained incarcerated for over two years in a corruption reference, would be illegal and in breach of his fundamental rights when the National Accountability Bureau (NAB) lacked sufficient incriminating material against him.

“NAB has failed to point out any material, which could reasonably show that the properties alleged to be held by Khurshid Shah, in the name of other persons as his benamidar, are in his actual possession and that he received profits on those properties,” observed Syed Mansoor Ali Shah in a judgement he wrote.

A two-judge SC bench consisted of Justice Umar Ata Bandial and Justice Syed Mansoor Ali Shah had on Oct 21 last year granted bail to Khurshid Shah subject to furnishing bail bonds of Rs10 million with one surety in the like amount but with a condition that his name would remain on the Exit Control List.

NAB had arrested Mr Shah on Sept 18, 2019 from Islamabad where he had come to attend a session of the National Assembly. The bureau has alleged that the PPP stalwart, along with his wives and sons and his benamidar, owns and possesses assets that are disproportionate to his known sources of income.

Observes NAB has failed to provide sufficient incriminating material against PPP stalwart

The SC judgement also cited earlier directives that a number of factors should be considered before determining whether a particular transaction was benami in character. Yet the most crucial factor in the criminal law context is who is in actual possession, or control of possession, of the property and who receives the profits arising out of the property.

The verdict noted that NAB had failed to mention the assets possessed by Khurshid Shah and his family members as well as their sources of income which have now been collected but were not available with NAB in earlier investigation.

“Still we made a fresh tentative assessment in the interest of justice to satisfy whether there is incriminating material to provide reasonable grounds that the petitioner is guilty of the alleged offence,” the judgement said.

About the value of their assets/properties, the apex court observed that NAB determined it by rejecting the value mentioned in the registered sale deeds without any solid lawful basis, only to make a case that their assets were disproportionate to known sources of income. “What is more disturbing is that it has not been specified whether the value determined by NAB is that of the time when these properties were purchased or their current value,” the judgement said.

“Needless to mention that it is the value of the property at the time of its purchase which is to be compared with the known sources of income of the purchaser at the time of that purchase for determining whether or not the purchase of that property is disproportionate to his sources of income,” it added.

Further, Justice Shah observed, NAB had neither estimated the agricultural income of the petitioner in accordance with Rule 3 of the West Pakistan Land Revenue Assessment Rules 1968 nor included the same in his known sources of income.

“As for the transactions of amount credited and debited in the bank accounts of the petitioner and his family members, the petitioner has taken the stance that all these accounts were disclosed and accounted for in their annual income tax returns and declarations of assets and that NAB had not pointed out any material to rebut the stance of the petitioner.

“Thus there is no such tangible, sufficient incriminating material available on record of the case against the petitioner which would lead to inference of the guilt of the petitioner for commission of the offence alleged against him. Therefore, at this stage [there are] no reasonable grounds for believing that the petitioner is guilty of the alleged offence,” the judgement said.

It added: “While the petitioner is found entitled to the grant of bail on merits as discussed above, even as to the delay in conclusion of the trial he cannot be blamed therefore. The petitioner was arrested in the present case on Sept 18, 2019 and facing trial on an interim reference. Since his arrest, a period of more than two years has lapsed but NAB is yet to file the final reference, thus the conclusion of the trial is not in sight for no fault of the petitioner.”

The court observed that such a long delay did constitute “inordinate and unconscionable delay”, as held in the 2019 Talat Ishaq [case judgement], justifying the release on bail of the petitioner pending his trial even on this ground as well. It must be remembered that in criminal law, everybody including the co-accused, is liable only for his own acts and omissions, not of others, it added.

“Even otherwise, in a case where NAB has been unable to show sufficient incriminating material to the court to justify the detention of the accused, depriving the accused of his liberty and freedom even for a single day is, to say the least, unconscionable and below human dignity,” the judgement said.

Published in Dawn, January 25th, 2022