NAB failed to justify Khursheed Shah’s custody: SC

The Supreme Court has held that the National Accountability Bureau (NAB) could not provide any justification for keeping Khursheed Shah in custody for two years.

The anti-graft watchdog has failed to collect tangible and sufficient incriminating material against the PPP leader to justify his detention even for a single day, Justice Syed Mansoor Ali Shah observed in a written judgement on Shah's bail application.

The top court had on October 21, 2021, granted bail to Shah on a surety bond of Rs10 million. However, the court decided to keep his name on the Exit Control List (ECL), saying the accountability court that was hearing the case could decide to remove it.

In its written verdict on Monday, the SC noted that keeping the PPP leader in custody without sufficient concrete material to justify his detention, “depriving the accused of his liberty and freedom even for a single day” was, “to say the least, unconscionable and below human dignity".

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There was no sufficient incriminating material to prove that the properties held by the persons who are not the family members of Khursheed Shah, but are alleged to be his benamidar, are actually of Khursheed Shah, the order pointed out.

"Although, as held by the constitutional courts of the country that a number of factors are to be considered to determine the question whether a particular transaction is benami in character yet perhaps the most crucial factors, in the criminal law context are: (i) who is in actual possession, or control of possession, of the property, and (ii) who receives the profits arising out of the property"

The order noted that the NAB not only failed to deal with these factors but also failed to point out any material which could reasonably show that the properties alleged to be held by Shah, in name of other persons, as his benamidar, are in his actual or constructive possession and/or he receives the profits of those properties.

So far as the value of the assets/properties in names of Khursheed Shah and of his family members are concerned, the court noted that the NAB has determined the same by rejecting their value mentioned in the registered sale deeds without any solid lawful basis, to make a case that their assets are disproportionate to their known sources of income.

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"What is more disturbing is that it has not been specified whether the value determined by the NAB is that of the time when the said properties were purchased by the petitioner and his family members, or the same is their current value,” it said.

The court further noted that the NAB has not estimated the agricultural income of Shah in accordance with the provisions of rule 3 of the West Pakistan Land Revenue Assessment Rules 1968, nor has included the same in his known sources of the income.

The court also said that Khursheed Shah was arrested in the present case on September 18, 2019, and facing trial on an interim reference.

"Since his arrest, a period of more than two years has lapsed but the NAB is yet to file the final reference, thus, the conclusion of the trial is not in sight for no fault of the petitioner. Such a long delay does constitute “inordinate and unconscionable delay”, as held in Talat Ishaq case, justifying the release on bail of the petitioner pending his trial even on this ground as well.

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The apex court said that further detention of Shah in the present case would be without lawful authority and in breach of his fundamental rights and that it was a fit case for exercise of constitutional jurisdiction by the High Court, under Article 199 of the Constitution, to make an order for the release of the petitioner on bail till the decision of the case.

“The High Court has not exercised its discretion judiciously and reasonably. We, therefore, convert this petition into appeal and allow the same", the order said.

In 2013, NAB had reopened two corruption cases against Shah under the directives of the Lahore High Court.

In July 2019, NAB Chairman retired justice Javed Iqbal had approved nine inquiries against different personalities, including Shah.

Subsequently, Shah was arrested on Sept 18, 2019, and NAB filed another reference against him the next day.