IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
Present: 
Mr. Justice Maqbool Baqar 
Mr. Justice Mazhar Alam Khan Miankhel 
 
 
Civil Petitions No.2243-L and 2986-L of 2019 
(Against 
the 
Order 
dated 
18.06.2019 
passed by the Lahore High Court, Lahore in 
W.Ps. No. 9726 & 9729 of 2019) 
 
 
 
 
 
Khawaja Salman Rafique     ….(in C.P. 2243/19) 
Khawaja Saad Rafique         ….(in C.P. 2986/19) 
 
 
Petitioner(s) 
 
Versus 
 
National Accountability Bureau 
through its Chairman, etc 
                                                                          Respondent(s) 
 
 
 
 
 
 
For the Petitioner(s) 
: Mr.Ashtar Ausaf Ali, ASC  
Mr.M. Azam Nazir Tarar, ASC 
Mr.Muhammad 
Amjad 
Pervaiz, 
ASC assisted by Muhammad Adil 
Chattha 
 
 
 
For the Respondent(s) 
: Mr. Jehanzeb Khan Bharwana,  
Addl. P.G. 
 
 
Mr. Naeem Tariq, Spl Prosecutor 
(NAB) 
Mr. Zawar Manzoor Waraich, Dy. 
Dir, (NAB) 
 
 
Date of Hearing 
: 17.03.2020 
 
 
Maqbool Baqar, J-,  
“A state which dwarfs its men, in order that they 
may be more docile instruments in its hands even 
for beneficial purposes--- will find that with small 
men no great thing can really be accomplished” 
 
- 
John Stuart Mill 
 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
2
The prosecution case, as set out in the 
Reference, is that it was in pursuance of various 
complaints received from “Members of Public at Large” 
that an investigation was authorized by the Competent 
Authority on 6.11.2018.  
 
2. 
It is alleged that the petitioners, Khawaja Saad 
Rafique and Khawaja Salman Rafique, the accused Nos. 
2 and 3, in connivance with accused No.1, 4 and 5, 
namely Nadeem Zia Pirzada, Umar Zia and Farhan Ali, 
and Qaiser Amin Butt (“QAB”), the accused turned 
approver, launched a housing scheme through a private 
limited company, namely Paragon City Private Limited, 
(the Company), by the name of Paragon City, and started 
collecting money towards booking of plots therein. It is 
further alleged that though, through letters dated 
10.09.2014 
and 
04.09.2016, 
Lahore 
Development 
Authority (“LDA”), had informed its Town Planning 
department, the Revenue department Punjab, and the 
various utility companies/agencies, that the scheme/ 
project has been launched without any approval from 
LDA, and had requested its Director Planning to take 
action against the ongoing development work in the 
scheme, and had also requested the Revenue department 
to impose a ban on issuance of “Fard-e-Malkiat”, 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
3
pertaining 
to 
the 
scheme, 
however, 
the 
accused 
continued with the project and the booking/sale of plots 
therein.  
 
3. 
It is stated that Paragon City, spread over an area of 
7002 Kanals of land, was approved by TMA Aziz Bhatti 
Town, Lahore on 18.01.2005, but the said approval was 
obtained by the accused on the basis of forged 
documents, as the accused, at the relevant time owned 
only 1085 Kanals of land.  
 
4. 
It is further alleged that the paragon City illegally 
possessed State/Shaamalat lands comprising a total of 
39 Kanal and 13 Marlas in different Mauzas of Tehsil 
Cantt, Lahore, converted the said lands into residential 
plots; and sold the same. 
 
5. 
It is also alleged that the Petitioner Khawaja Saad 
Rafique, in connivance with Nadeem Zia Pirzada, the 
accused No.1, illegally occupied 31 Kanals and 80 Kanals 
of lands owned by some Shahid Butt and Haji Rafique, 
respectively, converted the said two parcels of land into 
plots, and sold the said plots as part of Paragon City.  
 
6. 
It is further alleged that the petitioners acquired 40 
Kanals of land in Paragon City in exchange for land 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
4
measuring 50 Kanals and 3 Marlas. The two are also 
accused of obtaining 20 plots, measuring 2 Kanals each. 
It is claimed that though the record shows that the “cost 
of land of said plots was fully paid but no payment was 
made to Paragon City (Pvt.) Ltd pertaining to cost of said 
plots”. 
 
7. 
It is claimed that the Petitioners are the beneficial 
owners of the Company, who alongwith Nadeem Zia 
Pirzada, the accused No.1, in fact hold 93.6% shares 
therein, whereas, the remaining 7.4% shares are held by 
the approver, QAB. The affairs of the Company, as per 
the prosecution, were being managed by the Petitioner, 
the accused No. 1, and QAB.  
 
8. 
It is further alleged that amounts in the sum of 
Rs.6.2 Million and Rs.12 Million were received by the 
petitioners from the Company, in their respective bank 
accounts, receipts of which they failed to justify.  
 
9. 
The Petitioners have also been accused of receiving 
amounts of Rs.58 Million and Rs.39 Million, from M/s. 
Executive Builders, which is a partnership concern of 
accused No.4 and 5, and as per the prosecution, is, 
under some arrangement with the Company engaged in 
constructing and selling housing units in Paragon City. It 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
5
is stated that the said amounts were purportedly received 
by the petitioners by way of professional fee and 
consultancy charges, through their proprietary concern 
namely 
M/s. 
Saadian 
Associates 
and 
M/s. 
KSR 
Associates, respectively. It is claimed that the firm 
Executive Builders a “proxy” of the Company and the 
same, and so also the above business concerns of the 
Petitioners, have been created and deployed as a 
mechanism and a ruse, to camouflage the money trail by 
layering the receipts. The above payment by the 
Executive Builders, and those also from the Company to 
the Petitioners, have been described by the prosecution 
as “illegitimate pecuniary benefits” and “illegal gains”. It 
is stated that during the last few years an amount of 
Rs.480 Million has been transferred from the various 
bank accounts of the Executive Builders to the bank 
accounts of the Company. It is pointed out that out of the 
two partners of Executive Builders, one being accused 
No.4, is the real brother of the accused No.1, and the 
other, being accused No.5, is the brother-in-law of the 
Petitioner Khawaja Salman Rafique. 
 
10. It is stated that the Bureau has received complaints 
from 68 different persons from whom the Company 
received payments towards allotment of plots, however, 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
6
neither have the plots been delivered nor is the money 
being refunded to them. 
 
11. Though the facts contained in the instant paragraph 
do not seem to be of much relevance, but, having been 
narrated in the Reference, are for the sake of 
completeness, also being mentioned herein. It is stated 
that in the past also the Petitioners and accused No.1, 
alongwith QAB, have jointly ventured into real estate 
development business. The Petitioner Khawaja Salman 
Rafique has so ventured directly, whereas, the Petitioner 
Khawaja Saad Rafique has participated therein through 
his wife Ghazala Saad Rafique. It is thus stated that the 
Petitioner Khawaja Salman Rafique, alongwith Ghazala 
Saad Rafique, Shama Nadeem (wife of accused No.1), and 
two 
others, 
namely 
Ziauddin 
Pirzada, 
and 
Haji 
Muhammad Amin Butt, established a private limited 
company by the name of M/s. Debonair (Pvt.) Ltd., which 
was so registered with SECP on 18.09.1997. The 
Company purchased lands in Mauzas Jaspal, Malik Pur 
and Jughian in Lahore, and on 11.04.2000 obtained an 
NOC from Military Estate Officer Lahore Cantonment for 
developing a housing scheme thereon under the name 
and style of Air Avenue Housing Scheme, However, the 
scheme was not launched and the land was instead sold 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
7
to M/s. Arban Developers and Eden Development (Pvt.) 
Ltd.,  
 
It is alleged that the proceeds of the above sale were 
received by M/s. Debonair (Pvt.) Ltd., in its three bank 
accounts which were being operated by Qaiser Amin 
Butt, Khawaja Salman Rafique, Shama Nadeem and 
Nadeem Zia.  
 
It is further stated that the same set of persons, 
who were directors in M/s. Debonair (Pvt.) Ltd. with the 
substitution of Haji Muhammad Amin Butt, by his wife, 
Safia Begum, entered into a partnership, which firm was 
registered with the Registrar Division by the name of 
M/s. Debonair (AOB) on 30.06.2000, however, nothing 
more is said about the said firm.  
 
12. The two amongst the above Directors/partners, 
namely 
Nadeem 
Zia 
and 
QAB, 
on 
25.06.2003, 
established a private limited company, which was 
registered with the SECP on 25.06.2003 by the name of 
Air Avenue (Pvt.) Ltd and it was on 11.08.2003 that the 
name of the Company was changed to Paragon City (Pvt.) 
Ltd, the company.  
 
13. Admittedly, the record reveals that it is only Nadeem 
Zia Pirzada, the accused No.1, and QAB, the purported 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
8
approver, who are the directors of the Company. The 
prosecution has not drawn our attention to any 
document or material that establishes the petitioners’ 
control of or any direct relation with the company. 
Indeed, as noted above, certain payments by the 
Company and its so called “proxy”, M/s. Executive 
Builders, have been made to the Petitioners, the 
relevance, effects and implications whereof shall be 
discussed in the latter part of this judgment. The 
linchpin of the prosecution case, so far the alleged 
connectivity of the Petitioners with the affairs of the 
Company, and their direct financial interest therein, 
which 
may 
tend 
to 
make 
them 
liable 
for 
any 
malfeasances or misfeasance of the Company, is 
concerned, is the purported statement of QAB, that he 
allegedly made under Section 26 of the NAO, 1999 and 
Section 164 of the Cr.P.C.   on 06.12.2018. 
 
14. The intrinsic value of the purported statement, 
examination and analysis of its contents, and the facts 
leading to the recording of the statement, alongwith the 
circumstances and the manner in which it was 
purportedly recorded, shall be made and discussed in a 
while. We may, however, observe here that the gist of the 
statement 
is 
that 
the 
petitioners 
are 
the 
major 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
9
shareholders in the company, and that the company is in 
fact being managed by them through Nadeem Zia, the 
accused No.1, who has been working for and with them 
since 1997, which is also the year since which QAB also 
has been their associate. 
 
15. Before examining and analysing the contents of the 
purported statement and evaluating its intrinsic value, 
we cannot resist expressing our shock and dismay over 
the facts leading to the recording of the statement, the 
circumstances and manner in which it was recorded. The 
whole episode lays bare the prosecution’s conduct and is 
a clear manifestation of their scant regard for the 
mandate of the law and the principles of fairness, equity 
and propriety. Before we proceed to record the events 
culminating in the recording of the purported statement 
dated 06.12.2018, it may, for a better appreciation of the 
matter, be noted that the aforesaid statement is not the 
only statement that QAB purportedly recorded under 
Section 26 of the NAO. In fact earlier too, a statement 
under the above provision was recorded by QAB before a 
Magistrate. It appears, however, that since the same did 
not inculpate the petitioners in the so-called, alleged or 
perceived offence, the pardon tendered to him on 
23.11.2018 was withdrawn.  
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
10
 
16. In order to have a full view of the matter, it may be 
noted here that QAB was arrested from Sukkur on 
14.11.2018. His transitory remand was obtained from an 
Accountability Court up to 19.11.2018, on which date he 
was 
produced 
before 
the 
Administrative 
Judge, 
Accountability Court, Lahore, where QAB’s physical 
remand was granted upto 04.12.2018. On 20.11.2018 
QAB purportedly submitted to the Chairman NAB (“the 
Chairman”) an application seeking pardon under Section 
26 of the NAO. Through order dated 23.11.2018, the 
Chairman was pleased to approve tender of pardon to 
QAB, subject to his making disclosure in terms of Section 
26 of the NAO. Resultantly on 26.11.2018, QAB 
purportedly recorded his statement before a Magistrate. 
As noted in his second application dated 30.11.2016 (in 
pursuance whereof QAB recorded the statement dated 
06.12.2018, referred to herein before), however, “due to 
disturbing situation created by the gathering of various 
unidentified lawyers and private persons he could not 
disclose full and true facts” within “his knowledge 
relevant to the offence”, as per his statement before the 
Chairman NAB. Consequently, the Chairman through 
order dated 26.11.2018, withdrew the pardon tendered 
by him to QAB on 23.11.2018.  
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
11
 
17. It was through the aforementioned application 
dated 30.11.2018 that the latter once again offered to 
record his statement and enclosed therewith a copy of a 
detailed statement purportedly recorded by him before 
the Investigation Officer the same day. QAB also 
undertook to make a statement in terms of Section 26, 
NAO before a Magistrate after being tendered full pardon 
in the case. However, it was only on 04.12.2018, the day 
the physical remand of QAB was expiring, that the 
prosecution filed an application for transitory remand of 
QAB for producing him before the Chairman for pardon. 
The application dated 04.12.2018, however, made no 
mention of QAB’s earlier statement under Section 26 
NAO, the grant of pardon and its subsequent withdrawal. 
Through another application filed alongwith the above 
application, the prosecution also sought 15 days’ 
physical remand of QAB. The remands, as requested, 
were granted by the Court the same day.  
 
18. Through a written statement dated 05.12.2018, 
signed by QAB and counter signed by the Chairman, 
QAB undertook to give statement, as an approver before 
the Magistrate as offered by him. By an order of even 
date, the Chairman, whilst, tendering pardon to QAB, 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
12
subject to his making full disclosure, observed that “if 
pardon is granted to the accused Qaiser Ameen Butt, 
more confidence inspiring evidence will come on 
record, strengthening the prosecution case against 
his co-accused persons, which evidence was not 
directly available against the accused”. Through 
application dated 06.12.2018, the prosecution requested 
the Judicial Magistrate, Lahore to record the statement of 
QAB under Section 26 of the NAO. Nevertheless, there 
was no mention of such statement previously made by 
QAB. The Magistrate granted the application and 
proceeded to record the statement the same day, without 
any notice to the petitioners and the other co-
accused, thus depriving them of their right to cross 
examine the witness, which is a flagrant violation of the 
essential requirement of the provision of subsection (1-A) 
of Section 164 Cr. P.C. It has also not been claimed the 
approver was informed by the Magistrate that upon 
conclusion of his statement, his custody shall not be 
remitted back to the prosecution. The statement thus, 
also failed to meet the criteria prescribed by the 
provisions of Section 265-J, Cr.P.C., for it to be admitted 
as evidence, even if it had fulfilled the other requirements 
of admissibility. The statement in these circumstances 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
13
failed to conform to the principles enunciated by the 
superior courts, also. 
 
In the case titled as NAB v Hudaibya Paper Mills 
2018 PLD 296 it was observed by this Court: 
“To enable a statement recorded under section 164 of 
the Code to be used against an accused, it must be 
recorded ‘in the presence of the accused, and the 
accused given an opportunity of cross-examining the 
witness making the statement.” 
 
In the case Azeem Khan v Mujahid Khan 2016 SCMR 
274 while discussing the intent and purpose of Section 
164 the court observed as following: 
 
 
“…all 
signs 
of 
fear 
inculcated 
by 
the 
investigating Agency in the mind of the accused are 
to be shedded out and he is to be provided full 
assurance that in case he is not guilty or is not 
making a confession voluntarily then in that case, he 
would not be handed over back to the police. 
Thereafter, sufficient time for reflection is to be given 
after the first warning is administered. At the expiry 
of that time, Recording Magistrate has to administer 
the second warning and the accused shall be 
assured that now he was in the safe hands. All 
police officials whether in uniform or otherwise, 
including Naib Court attached to the Court must be 
kept outside the Court and beyond the view of the 
accused. After observing all these legal requirements 
if the accused person is willing to confess, then all 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
14
required questions formulated by the High Court 
Rules should be put to him and the answers given, 
be recorded in the words spoken by him”.  
 
In Abdul Sattar v The State PLD 1976 SC 404 it was 
pointed out: 
 
“As to how far the evidence of the approver can be 
accepted to substantiate the prosecution case, it may 
be conceded at once that he is a competent witness 
(section 133 of the Evidence Act). But the Courts have 
invariably in such cases followed the rule of common 
prudence enshrined in illustration (b) to section 114 
of the. Act and insist on independent corroboration of 
the evidence of an approver in material particulars. 
This rule though a rule of practice has acquired the 
rigidity of law. See Abdul Qadir v. The State (P L D 
1956 S C (Pak.) 407 J) which followed R. v. 
Baskerville ((1916) 2 K B 658).”  
 
Similarly, in the case of Federation of Pakistan v 
Muhammad Shafi Muhammadi 1994 SCMR 932, the 
following principles were enunciated: 
 
“The rule of prudence that the testimony of an 
approver or accomplice is to be corroborated in 
material particulars by independent evidence has 
almost hardened into a rule of law with the passage 
of time and because of the invariable insistence of 
the Superior Courts to have corroboration.” 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
15
 
“An accomplice who takes part in the commission of 
the offence for which his co‑accused is charged with 
falls within the category of a wicked person in terms 
of the above verse of the Holy Qur'an and, therefore, 
before acting upon his testimony, the truthfulness of 
it is to be verified by corroborative pieces of evidence 
on material particulars.” 
 
QAB’s statement, thus, insofar as he was not 
informed that he would not be returned to the custody of 
the Bureau and also for the reasons that neither any 
notice of his recording the statement was issued to the 
petitioners, nor were they otherwise provided any 
opportunity to cross examine him, render his statement 
irrelevant. Additionally, keeping in view that it otherwise 
finds no corroboration by any means whatsoever, QAB’s 
statement has absolutely no bearing on the case. 
 
However, far more devastating is the fact, as noted 
earlier, that it was through the second attempt only, that 
the prosecution was able to procure the purported 
statement dated 06.12.2018, having failed to secure a 
statement 
inculpating 
the 
petitioners 
in 
the 
alleged/perceived offences, and/or even attributing to 
them 
any 
shareholding 
in 
the 
company, 
and/or 
establishing their control over its affairs. Even, more 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
16
alarming is the fact that the Judicial Magistrate, Lahore 
after recording statement of QAB on 26.11.2018, instead 
of sending him to judicial custody had delivered his 
physical custody to the prosecution, which is against all 
norms of justice, fair play and propriety. It appears that 
the prosecution sought QAB’s physical remand in 
addition to his transitory remand, for a period longer 
than fifteen days with a two-pronged strategy: On the one 
hand it was able to exert pressure on QAB when he 
recorded his statement. In the event he would have failed 
to inculpate the petitioners, the prosecution could have 
continued to hold him and, thus, coerce him into 
submitting to their will and command by recording any 
statement they desired. However, a perusal of the 
statement, the gist whereof has been noted herein earlier, 
and its complete summary is annexed hereto as 
Annexure ‘A’, would show that all the efforts made by the 
prosecution in procuring the same have gone in vain, 
since it hardly contains anything which lends credence to 
the prosecution case or furthers their endeavour to lay 
blame for any alleged or perceived infraction by the 
Company on the petitioners. 
 
19. The Statement is completely bereft of necessary 
particulars and much of it contents are absolutely 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
17
irrelevant. QAB’s claim of petitioners’ shareholding in the 
company and their control over it is wholly contrary to 
the record. No details, particulars, document and/or 
material, either official, financial, personal or relating to 
any 
business 
deal, 
transaction, 
undertaking, 
or 
arrangement, or any kind of correspondence in support 
of such claim, has even been referred to in the statement. 
Additionally, the prosecution has not been able to refer to 
or rely upon anything to substantiate the statement, or 
the allegations contained therein, nor has it mentioned of 
any other witness who supports QAB’s purported stance. 
No question was put to the petitioners with respect to 
their alleged shareholding in or control of the company 
through the call up notices placed before us. However, 
even if the relevant contents of the purported statements 
are presumed to be true and correct, the same also do 
not, by themselves, constitute any offence or wrong doing 
on the part of the accused, attracting the provisions of 
NAO, 1999. 
 
20. Reverting to the various allegations contained in the 
Reference, which according to the prosecution, constitute 
acts of corruption and corrupt practices within the 
meaning of Section 9 of NAO,1999, we may first deal with 
the allegation that although LDA, had through its letters 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
18
dated 10.09.2014 and 04.01.2016, informed its director  
Town Planning, the Collector Revenue department, 
Punjab, 
Lahore, 
and 
the 
various 
utility 
companies/agencies, that the sponsors of Paragon City 
have launched the said scheme within the controlled area 
of LDA, without prior permission from the competent 
authority, and are carrying out construction and 
development work, and sale/purchase of plots therein, 
without the requisite approvals and also asked its 
directors to take legal action against such development 
and requested the Collector Revenue not to issue Fard-e-
Malkiyat and register, or attest any document pertaining 
to the scheme. The LDA also requested the utility 
providers to stop/discontinue such provisions, but the 
accused persons continued with the development of the 
scheme and booking/selling of plots therein. In this 
regard it may be noted that the scheme, as noted in the 
Reference itself, was approved by TMA Aziz Bhatti, 
Lahore way back in January, 2005 and as mentioned by 
QAB in his statement under Section 26 of the NAO, 
(relied upon by the prosecution for roping in the 
petitioners in this case,) was launched the same year, i.e. 
the year 2005. The prosecution and/or the LDA has thus 
far not mentioned/disclosed, since when, or under what 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
19
law, notification, or scheme, to what extent, and in what 
manner, the area in which Paragon City is situated, fell 
within the jurisdiction of the LDA. It is also not 
submitted as to why and to what extent did the scheme 
require an approval from the LDA to begin with. It was 
not even claimed that the LDA ever sought any such 
submission or regularization from the company. It has 
also not been submitted as to what could be the 
consequences of noncompliance with the provisions, if 
any, in that regard, and whether such non-compliance 
triggers any penal action, and if so, under what 
circumstances. We have also not been apprised regarding 
the nature of these penal consequences to initiate such 
action, and whether any warnings were issued by the 
LDA or any other relevant department before proceeding 
in that regard. It is also worth asking if the public at 
large were cautioned regarding the violation of any law, 
rule or regulation by the company in relation to Paragon 
City. Little was offered by the prosecution in the way of 
details about the extent of the scheme’s development and 
as to how many plots/properties have been sold by the 
time Paragon City allegedly fell within the jurisdiction, 
control and competence of LDA. NAB has not even 
claimed putting any question to the petitioners, regarding 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
20
the permission, either through their call up notices or 
otherwise, 
nor 
have 
they 
implicated 
any 
public 
functionary in this regard. There is absolutely no 
allegation that any buyer/purchaser in Paragon City was 
deprived of his accrued/vested rights, on account of the 
alleged lack of permission and/or approval. It has been 
admitted that out of 8,000 purchasers, NAB received 
complaints only from 68 though the Petitioners have 
been operating the Scheme since last 16 years. 62 of 
these complaints have admittedly been settled, affidavits 
of the complainants in this regard duly verified by the 
NAB have been placed before us. How in the above 
backdrop could the alleged development work and sale 
then fall within the ambit of Section 9 of the NAO, 1999.  
In any event, and as noted earlier too, since the 
prosecution has thus far not been able to connect the 
petitioners with the company in the manner so that they 
may be held liable for its acts, deeds and conduct, the 
allegations dealt through the instant paragraph, in so far 
as the petitioners are concerned, are wholly irrelevant 
and inconsequential. 
 
21.  Secondly, it is alleged that while the approval for 
Paragon City was obtained by the accused from TMA Aziz 
Bhatti, Lahore in 2005 for an area of 7002 Kanals, they 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
21
only held 1085 Kanals of land at that time. It is thus 
alleged that the approval, to the extent of the remaining 
land was based on forged documents. However, no 
documents were referred to in this regard, nor were any 
particulars mentioned. It is also not claimed that the 
TMA or any other department, took cognizance of the 
alleged fraud, or whether any action was ever initiated 
against anyone including the functionaries of the TMA, 
who could have been responsible for the same. It is also 
not alleged that any portion of the land comprising 
Paragon City, except the purported Shaamalat lands, or 
those which allegedly belonged to Shahid Butt and Haji 
Muhammad Rafique (the allegations regarding which 
three lands shall be dealt with in a while) did not belong 
to the company at the time of development and sale of 
the plots/properties in Paragon City, and/or that any of 
the company’s buyers/customers were deprived of their 
purchase, or of any of their rights in relation thereto, on 
account of above alleged fraud. With regard to the instant 
allegation too, no witnesses were mentioned, nor was any 
question put to the petitioners. No public functionary has 
been implicated in relation to the instant allegation 
either.  
 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
22
22. As regards the State/Shaamalat lands, it may be 
noted that neither any notification nor any map or 
documents establishing the size thereof as claimed (39 
Kanals) existed in the area, over which the Paragon City 
has been developed. In any event, there is absolutely no 
allegation of any violation of the permission granted by 
the TMA in relation to the scheme. It is also not clarified 
as to how much of the 39 Kanals of land comprised 
Shaamalat 
and 
how 
much 
of 
it 
was 
of 
other 
nature/category. It may be relevant to note here that 
Shaamalat lands belong to the village proprietary body 
and are used by the village community as a common 
village facility, whereas after purchase of the land/area, 
wherein 
Shaamalat 
existed, 
from 
its 
various 
owners/villagers, 
the 
company, 
after 
obtaining 
permission from the relevant TMA, has developed it into a 
housing scheme. It is also relevant to note here that 
Paragon City is spread over vast area of 7002 Kanals, 
and it has not been alleged that the scheme does not 
contain any common facilities for the community it 
houses, and certainly there is no concept of a housing 
scheme without roads, streets, parks, playgrounds, 
walkways, 
open 
spaces 
and 
other 
public 
facilities/utilities essentially required for a modern day 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
23
living. 
In any case this is a matter, which, as 
presented before us, can only be thrashed out after a 
detailed factual enquiry.  
 
23. With regard to the State land, which possibly 
comprised abandoned parks, passages and water courses 
or ponds, which may be falling within the area of Paragon 
City, the learned counsel for the petitioners has 
submitted before us, a copy of a Gazette Notification 
dated 13.09.2019, issued by the Government of Punjab, 
Colonization Department, Board of Revenue, under 
Section 109 of the Colonization of Government Land 
(Punjab), Act, 1912, which contains a statement of 
conditions, for disposal of abandoned parks, passages 
and water courses or ponds falling within a private 
housing scheme through exchange with the land of the 
said scheme, in terms whereof the housing scheme 
wherein lies the above said facilities/lands, shall provide 
in exchange thereof, an accessible equal piece of land in 
a compact block within the said scheme. It also provides 
that the “State land utilized by a private housing scheme 
shall be dealt with on the above analogy”. Learned 
counsel also placed before us a photocopy of a notice 
dated 
29.01.2020, 
issued 
by 
Additional 
Deputy 
Commissioner (Revenue) Lahore, whereby the company 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
24
has been required to submit a proposal for exchange in 
terms of the above notification within 10 days. Learned 
counsel submitted that in view of the foregoing, there was 
no occasion for invoking the provisions of NAO with 
regard to the instant issue and the company may be 
allowed to respond to the notice in accordance with law. 
We found the contention to be just, fair and lawful.  
 
24. The allegation of illegal occupation of Shahid Butt’s 
land, also are as tenuous are the other allegations dealt 
with herein before. Neither any survey number or any 
other description of the land, or its location is given, nor 
is it explained as to, how, under what circumstances, or 
when, the land was occupied. Contrary to what has been 
attempted to be portrayed, it was not a matter of simple 
occupation of any land, but a business dispute between 
the parties pertaining to a joint venture, in terms whereof 
Shahid Butt handed over certain land to the company for 
developing it as a separate block of Paragon City, and to 
construct housing units therein, and as evident from the 
various documents placed before us, being (i) agreement 
dated 10.10.2015, executed between Paragon City (Pvt) 
Limited (through its chief Executive, the accused No.1), 
and  Imperial Developers (through its Chairman Shahid 
Butt)(pages 348 to 350, CPLA 2243), (ii) the plaint in a 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
25
suit filed by Shahid Butt against Paragon City (Pvt) 
Limited for declaration and injunction before a Senior 
Civil Judge, Lahore on 17.01.2016 (pages 87 to 92, CPLA 
No.1168/2020), (iii) the plaint in a suit filed by Paragon 
City (Pvt) Limited for recovery of money, declaration and 
injunction, before a Senior Civil Judge, Lahore on 
08.09.2018 (pages 101 to 111, CPLA  2243/2019) and 
(iv) the application/statement dated 20.11.2019, filed by 
Shahid Butt before Senior Civil Judge, Lahore for 
withdrawal of his above suit, the dispute between Shahid 
Butt and Paragon City (Pvt) Limited was purely of a civil 
nature, involving commercial, financial and business 
disputes pertaining to the development of a housing 
project, reimbursement of certain investment, and 
sharing 
of 
profit 
between 
them. 
The 
afore-noted 
agreement dated 10.10.2015, thus reflects that there was 
some money dispute, accounting issue pertaining to the 
development charges of a housing project, namely 
Imperial Garden, and that attempt to settle and resolve 
the same as agreed between the parties through a third 
party 
intervention 
earlier, 
hit 
snags 
because 
of 
varied/divergent perceptions  of the parties, and it was in 
terms of the said agreement that they agreed to remove 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
26
the same through a facilitator named therein, and to 
finalize the accounts in terms of the earlier agreement. 
 
25. Whereas through his above suit, it appears, that 
Shahid Butt sought to revive/protect his purported title 
in respect of certain lands, in all measuring about 3 
Kanals and 8 Marlas, that he allegedly purchased in the 
year 2017, and sought cancellation of mutation thereof in 
favour of the company. Shahid Butt claimed that after 
purchasing the said land he merged the same into a 
housing scheme namely, “Paragon Homes”, constructed 
houses thereon, and sold the same to different parties, 
and that various families are living therein. It was 
further alleged that the company on the basis of false 
and bogus sale deed claimed to have purchased 1 Kanal 
and 12 Marlas and 5 Kanals and 3 Marlas land in the 
years 2003 and 2008 respectively, and successfully 
sought mutation of the land so purchased by them, after 
cancellation of the mutation of the portion of such land 
that was earlier affected in favour of Shahid Butt. Shahid 
Butt sought a declaration that he was the owner of the 
land as claimed by him and that the purported sale 
deeds in favour of the company have no bearing on his 
above title. He also prayed for a decree, ordering 
cancellation of the above mentioned mutations and for 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
27
permanent injunction, restraining the company from 
disturbing his possession of the said land. 
 
26. Whereas the case of the company, as set out in its 
above plaint, was that under an agreement dated 
28.11.2006, executed between the company and Shahid 
Butt, the latter delivered to the former, possession of his 
land measuring 1067 Kanals and 8 Marlas for developing 
the same into a housing scheme. It was claimed that the 
agreement stipulated that the company shall finance 
build and develop the scheme and that amounts at the 
rate of Rs.800,000/- per Kanal shall be reimbursed to 
the company by way of development and construction 
charges and that the company shall be entitled to 60% 
share in the profits earned from the scheme. It was 
alleged that though the reimbursement as agreed was 
made but the amount of profit remained unpaid. It was 
further claimed that in addition to developing, building 
and financing the scheme, the company also contributed 
its land for the scheme, and that, in lieu thereof the 
company was to be given plots consisting of 55 Kanals in 
the “Imperial Garden”. As per the plaint, the company’s 
share in the profits was mutually calculated at 
Rs.340,006,448/-. It was further averred that Shahid 
Butt also acknowledged that he has occupied the 55 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
28
Kanals land agreed to be given to the company, and 
promised to pay an amount of Rs.970 (m) towards the 
price of the said land. He, however, delivered to the 
company, 94 housing units only. It was also claimed that 
after mutual accounts taking Shahid Butt’s liability was 
determined at Rs.84(m), which liability he acknowledged 
and undertook to liquidate by appending his signature on 
the statement/document drawn in this regard, but 
resiled from his commitment and avoided payment on 
one pretext or the other. The matter was thus submitted 
to arbitration. Shahid Butt failed/avoided even to honour 
the arbitral award/settlement. It was further alleged that 
Shahid Butt also occupied 22 housing units, which he 
delivered to the company towards partial settlement of 
his liability. The company prayed for a declaration that it 
was a shareholder in the Imperial Gardens block/project 
and is entitled to all the 94 housing units built therein 
and for payment of Rs.84(m) from Shahid Butt. 
 
27. The position that emerges from the foregoing, and 
as also acknowledged by Shahid Butt, in very clear and 
categorical 
terms, 
in 
his 
aforementioned 
application/statement whereby he withdrew his suit, is 
that the dispute between the parties was purely of a civil 
nature, 
arising 
out 
of 
a 
business/commercial 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
29
undertaking and a joint venture, mainly involving and 
pertaining to settlement of accounts. In his aforesaid 
statement/application Shahid Butt has clearly stated 
that the dispute between him and the company stems 
from the business relationship between him and the 
company. He acknowledged that it was under and in 
terms of a collaboration agreement dated 01.11.2006 that 
a housing block / scheme by the name of Imperial 
Gardens was developed under the umbrella of Paragon 
City (Pvt) Limited. However, issues in relation to the 
operation, execution and accounts pertaining to the 
project arose between the parties from time to time, 
resulting in litigation, which have been settled amicably 
and, therefore, he be allowed to withdraw the suit. The 
suit was thus dismissed as withdrawn. It may be 
interesting to note here that even the statement made by 
Shahid Butt before the Investigating Officer in this case, 
which forms the very basis of the present allegation, also 
very clearly depicts the nature and the substance of the 
dispute between the parties as discuss above.  
 
28. The allegation of occupying Haji Muhammad 
Rafique’s land is also equally weak and sketchy. 
However, in that regard, it may be noted that, as can be 
seen from (i) the agreement dated 26.08.2006, executed 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
30
between Haji Muhammad Rafique and co-accused No.1, 
as Chief Executive of the company, to refer their dispute 
to arbitration, (ii) the declaration of Award dated 
31.01.2019, and (iii) the order dated 05.11.2015, in 
terms whereof a learned Senior Civil Judge, Lahore made 
the said Award a Rule of the Court (pages 351 to 355 and 
365 to 370 respectively of CPLA No.2243/2019),  several 
issues and disputes pertaining to sharing of expenses 
towards certain development/amenities, in respect of 
their respective housing scheme, and in relation to 
certain land purchase transactions entered into by each 
of them with different parties separately, resulting into 
both of them claiming their right/interest over the same 
lands, and also in respect of exchange of certain lands, 
arose between them, and that it was through the above 
noted agreement dated 06.08.2006, that the parties 
agreed to refer the said disputes/issues to an arbitral 
panel, who  upon conclusion of the proceedings before 
them made an Award in the matter on 26.08.2006.  
 
The Award, inter alia, unanimously provided that: 
 “(viii) the Arbitrators have unanimously held 
that Haji Muhammad Rafique shall deliver the 
vacant possession of the land measuring 163 
Kanals and 17 Marlas situated at Dogra-e-
Khurd, Tehsil Cant, District Lahore, to M/s. 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
31
Paragon City (Pvt) Ltd, in lieu of land 
measuring 163 kanals 17 marlas of village 
Kalaas Marri, Tehsil Cannt, District Lahore, 
(the detailed description of the land is 
appended herewith and will constitute an 
integral part of this Award). This exchange 
shall be accomplished by both the parties 
strictly in accordance with the measurement 
described in the appended details. As per 
relevant revenue record, Paragon City will 
hand over the vacant possession of the above 
mentioned land measuring 163 Kanals and 17 
Marlas in Klass Mari to Haji Rafiq. 
 
29. The above Award was submitted before Civil Judge, 
Lahore. 
The 
learned 
Judge 
after 
considering 
the 
objections, filed by Haji Muhammad Rafique under 
Section 30 of the Arbitration Act, 1940, and hearing the 
parties, made the Award a Rule of the Court. The said 
Award/Rule has however been challenged by Haji 
Muhammad Rafique before the Lahore High Court 
through FAO No.365 of 2015, which is pending. 
 
30. The reference also set out two different allegations 
regarding land transactions between the Petitioner and 
the company, one specifies exchange of certain lands and 
the other accuse the petitioners of wrongfully acquiring 
20 plot of land without any payment. As regards the 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
32
exchange of land it was alleged that the Petitioners 
exchanged their 39 Kanals and 19 Marlas and 10 Kanal 
and 4 Marlas lands with the company’s lands measuring 
32 Kanals and 8 Marlas, and as regard the alleged 
wrongful acquisition of the plots, it was stated that the 
Petitioners “wrongfully acquired 20 plots of 2 Kanal each 
from Paragon City (Pvt) Ltd. The files record shows that 
cost of land of said plots was fully paid but no payment is 
made to Paragon City (Pvt) Ltd”. However, subsequently, 
through its summary of the case, submitted before us, 
NAB changed its stance. The new version shows that the 
land measuring 32 kanals and 8 marlas, which the 
petitioners received from the company in exchange for 
their above land was in fact so received in the shape of 
the said twenty (20) plots and that the acquisition of the 
said plots, was not a separate or additional transaction. 
The above factual position was known to NAB since the 
very inception, as in response to their call up notices the 
petitioners 
through 
their 
respective 
letter 
dated 
29.03.2018, 28.03.2018 and 05.04.2018, provided to 
NAB complete details regarding the subject transaction. 
Not only did they repeatedly furnish to NAB the 
area/measurement 
of 
the 
lands 
exchanged, 
their 
locations, the designated number of the twenty (20) plots 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
33
situated in the land received in exchange; but also 
provided to them a detailed lay out plan highlighting the 
exact location of the said twenty (20) plots. The 
petitioners through the above letters also informed NAB 
that in terms of the exchange transaction they are also 
required to pay to the company, development charges in 
the sum of Rs.15,000,000/- in respect of the said plot, 
and have already paid to the company an amount of 
Rs.26,47,060/- on that account. Thereafter, despite a 
long que of call up notices NAB neither raised any query, 
nor conveyed any objection with regard to the exchange 
in question, however, during his argument before us the 
learned DPG NAB submitted that the Petitioners have 
unduly enriched themselves by getting developed plots in 
exchange for their undeveloped land. In this regard, it 
may be noted that in the first place the petitioners have 
parted with a substantially large piece of land, most of 
which is situated in the same mauza as are the subject 
plots, secondly, in addition to the said land, and as noted 
above, the Petitioner are also paying to the company 
charges for the development of the land converted into 
plots, thus the weight of the development probably goes 
off the scale.  In any event despite having all the required 
information and details, NAB has failed to place before us 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
34
any material to show, or to otherwise persuade us to 
believe that the exchange was unfair and/or that the 
petitioners have through the said transaction illegally 
enriched themselves at the cost of the company. In any 
view of the matter, since the transaction was between 
private individuals / entities, who were free agents, and 
has/had no bearing on any public or governmental 
interest, no exception to the same could have possibly 
been taken by NAB.  
 
31. As regards the allegation of receiving amounts 
approximately in the sum of Rs. 6.2 Million and Rs.12 
Million by the Petitioners from the company, it may be 
noted that through their earliest letters, as placed before 
us, which are dated 20.03.2018 and 23.03.2018, the 
prosecution has, inter alia, sought from the petitioners 
details 
of 
“services/financial 
transactions 
executed 
between them and the company, and the benefits drawn 
against such services/transactions, if any”. In response, 
the petitioners under cover of their letters dated 
28.03.2018, 29.03.2018 and 05.04.2018, and through 
annexure “C” thereto, have furnished to NAB the relevant 
information 
and 
details, 
wherein 
the 
amount 
of 
commission received by the petitioners from the company 
for the services rendered by them for purchase of lands 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
35
by the company from its various owners during the year 
2010 to 2013 have been mentioned year-wise. The 
statements also specify the amount of income tax 
withheld by the company. It is also mentioned that such 
payments were made by the company through cross 
cheques, and have been duly declared in the respective 
income 
tax 
returns 
of 
the 
petitioners 
for 
the 
corresponding years. However, such information was 
again sought by the combined investigation team of NAB 
during the interrogation, conducted by it on 29.03.2018. 
The information was thus once again submitted through 
a similar statement, as an annexure to their letters dated 
05.04.2018. Through letters dated 24.04.2016, the NAB 
sought from the petitioners “details/ bank document of 
commission received by you against lands provided to 
M/s. Paragon City (Pvt) Ltd. till date”. In response the 
petitioners, under cover of their respective letters dated 
30.04.2018, submitted to the NAB a statement, being 
annexure “B” thereto showing the amount of commission 
received from the years 2010 to 2013, year-wise, the date 
of such payments, the amounts of income tax withheld, 
the cheque numbers through which the payments were 
made, and the name of the bank whereon the cheques 
were drawn. Though NAB has since thereafter sent 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
36
numerous call up notices to the petitioners and also 
interrogated them personally, however, neither was any 
query made by it regarding the above payments, nor have 
they objected to or expressed any dissatisfaction 
regarding the replies / information, submitted by the 
petitioners. Here it may be relevant also to note that in 
response to the numerous subsequent call up notices, 
the petitioners have also furnished to the NAB complete 
details of their bank accounts, the source of the deposits 
held therein, and also the income tax returns alongwith 
the wealth tax statement, not only for the relevant years, 
but for the other periods as sought by the NAB. The 
petitioner also duly filled and furnished to the NAB the 
assets declaration proforma as required by them. 
However, the NAB neither through any of these notices 
and/or at the time of the argument, raised any objection 
regarding the Petitioner’s responses, and/or the material 
and information submitted by the latter, nor did they 
point out any discrepancy, inconsistency, inaccuracy, 
lacuna 
or 
inadequacy 
in 
the 
various 
responses, 
information, and documents mentioned above.  
 
32. As regards the payments of Rs.58 Million and Rs.39 
Million to the petitioner by M/s. Executive Builders 
towards professional fee and consultancy charges, which 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
37
services were provided by the two through their 
respective business concerns namely, M/s. Saadian 
Associates and M/s. KSR Associates, it may be noted 
that the petitioners through their various replies have 
furnished to the NAB all the information, details and 
documents required by them through their various call 
up notices in this regard, from time to time. The 
petitioners thus provided to the NAB the respective 
agreements 
between 
their 
business 
concerns/proprietorships, and M/s. Executive Builders, 
which contains the relevant details and the terms and 
conditions of the business engagements between those 
concerns and M/s. Executive Builders. The petitioners 
have also furnished to the NAB the details of various 
amounts received by them from M/s. Executive Builders 
by way of commission and consultancy fee from the years 
2013 upto the year 2018 respectively, and the amounts 
of tax paid thereon. As evident from the record, when 
asked the petitioners also disclosed the total number of 
housing units constructed by M/s. Executive Builders in 
Paragon City, and as to how many of them were 
marketed/sold by them, and in respect of how many 
such units they provided consultancy, the Petitioners 
also provided particulars and details, such as the 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
38
designated numbers of those units, their respective 
categories, the buyer names, the amounts of commission 
and/or consultancy fee received by them, the dates of 
such payment cheques, the name of the banks on which 
such cheques were drawn, numbers of units sold each 
year, number of units in respect whereof consultancy 
was provided each year, the nature of the consultancy 
services provided. It was also submitted that the price of 
the units sold were received directly in the bank accounts 
of M/s. Executive Builders only. 
 
33. Since the prosecution was left with no relevant fair 
and justified query and has nothing to object to, they 
virtually started repeating their earlier queries and 
making wholly irrelevant and inconsequential questions, 
through their notice subsequent to the responses 
received as above. 
 
34. Neither the investigation report nor the Reference 
specifies any discrepancy or inadequacy in the responses 
received as above, nor has the learned Additional 
Prosecutor 
NAB 
pointed 
out 
any 
lacuna 
in 
the 
transactions 
in 
question. 
Even 
otherwise, 
the 
transactions/business 
relationship 
between 
the 
company, M/s. Executive Builders and the petitioners, 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
39
and the various payments received by the petitioners 
through their said two concerns, were/are matters purely 
between private concerns and individuals. Neither has it 
been alleged that any loss has been suffered by any 
Government, nor has it been pleaded that any member of 
the public has in any manner suffered on account of 
above and/or it was because of such payments that the 
purported 
claimants/complainants 
were 
allegedly 
deprived of possession of their promised plots. 
 
35. It is not clear as to what in fact brought the NAB 
into action in the present case. Whether it were some 
complaints regarding non-delivery of plots, or was it 
some investigation, conducted against the accused 
persons, 
revealing 
that 
the 
company 
has 
denied 
possession of plots to its customers (in which later case 
again it is not known as to what occasioned such 
investigation) that triggered NAB against the petitioners 
and the other accused in this case, as on the one hand, 
the reference reveals that it was “in pursuance of 
complaints received from the members of public at large”, 
that “an investigation was authorized by the competent 
authority”, and so also, the chronological summary of the 
case, submitted in pursuance of our directions, described 
receipt of complaints “from members of public at large” 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
40
against the management of Paragon City on 26.11.2017, 
as the opening event, followed by complaint verification 
on 
12.01.2018 
and 
authorization 
of 
enquiry 
on 
06.03.2018 and then by an investigation authorized on 
06.12.2018, which summary also reiterated the above, by 
stating that it was “in pursuance of the complaints 
received from the public at large that an investigation 
was authorized on 06.12.2018”. Whereas on the other 
hand, the investigation report dated 20.05.2019 (pages 
14 to 31, CMA 2174/2020) states that it was as a result 
of investigation conducted against the accused persons 
that NAB came to know that “members of public at large 
were looted in a mechanical and systematic fashion, 
therefore, NAB Lahore published advertisement in daily 
newspapers and uploaded application forms on website 
of NAB to facilitate the general public for submission of 
their claims without visiting the NAB’s office”, and that it 
was 
in 
response 
to 
the 
above 
notice 
that 
96 
complaints/claims were received against the company 
alleging that the complainants, who paid for the plots in 
Paragon City were neither given possession of the plots, 
nor are their amounts being refunded. So it is really not 
known as to what in fact prompted the NAB into action in 
this case. Furthermore, there is a serious inconsistency 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
41
between what is said about those complaints in the 
reference and that stated in the investigation report, 
according to which report the complaints did not simply 
allege denial of possession and/or non-refund of the 
amounts but, that “the accused persons illegally and 
arbitrarily cancelled the plots of public and changed their 
location 
from 
front 
block 
to 
tale 
blocks 
and 
misappropriated the same”. Neither were any copies of 
the many purported claims/complaints, placed, nor were 
any details thereof submitted before us. It is also not 
claimed that any of the 
complainants filed any 
complaint/claim 
before 
any 
appropriate 
relevant 
authority 
earlier 
or 
filed 
any 
suit/proceedings, 
challenging the alleged cancellation and/or non-delivery 
of 
possession, 
and/or 
change 
of 
location 
and 
misappropriation. No correspondence by any of the 
purported complainant/claimant has been referred to. 
Although as per the investigation report the issue “is 
lurking since 3 to 13 years”. NAB has, therefore, not been 
able to demonstrate and explain the real nature of the 
disputes or the issues that arose between the company 
and the purported claimants, and has failed to explain, 
as to whether the conduct of the management of the 
company in the matter would attract the provisions of 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
42
NAO, to enable the NAB to even initiate an enquiry in 
that regard. In any event, as discussed in detail earlier, 
NAB having miserably failed to establish any control of 
the petitioners over the management of the company 
despite all their endeavours, so far, and they having not 
even claimed that any of the complainants/claimants 
alleged any role or concern of the petitioners in the 
alleged non-delivery of possession of their claimed plots 
and/or non-refund of their money paid for the said plots. 
It is intriguing as to how the names of the petitioners 
cropped up in the episode and as to how they came into 
picture. It is also crucial to note that in none of the so 
many call up notices sent by NAB to the Petitioners 
during a long period of March 2018 to October 2018, was 
there the slightest mention of any allotment of land, or 
any plot /property in Paragon City to any member of 
public, though as per the investigation report, the 
triggering issue and the gist of the allegations is “non-
delivery of possession of plots in Paragon City, however, 
it was not even put to the petitioners that any complaint 
in this regard has been received by the NAB. 
 
36. The position that emerges from the facts and 
circumstances of the case narrated and the material 
placed before us, is that it remains a mystery as to what 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
43
prompted the NAB into action in this case. It seems that 
except for what QAB may have allegedly told the NAB 
after his arrest on 14.11.2018, there was absolutely no 
word or material attributing to the petitioners any control 
over the affairs/management of the company. In fact, as 
noted 
earlier, 
the 
Chairman 
in 
his 
order 
dated 
05.12.2018, whilst tendering pardon to QAB, clearly 
acknowledged that no evidence against the petitioners 
was available with the NAB. Yet, the NAB embarked upon 
a roving inquiry against the Petitioners, as early as in 
March 2018, call up notice dated 20.03.2018 being the 
first in the series placed before us, and as noted earlier 
absolutely, no question was put to the Petitioners in 
relation to the allotment / sale of any plot/property by 
the company to its customers. The pattern of the 
questions put to the Petitioners, their vagueness, frivolity 
and irrelevance would show that the NAB had no inkling 
in the matter. NAB could not even build upon 
information and record provided by the Petitioners in 
response to their queries, and also did not find any 
lacuna, fault, inaccuracy, inconsistency or inadequacy in 
such information. They also could not raise any 
formidable objection regarding the conduct of the 
Petitioners in the matter. In none of the call up notices, 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
44
far from any infraction that could fall within the mischief 
of Section 9 or of any other provision of NAO, 1999, could 
the NAB allege any impropriety regarding the conduct or 
affairs of the petitioners in the matter. In any event, all 
those allegations which are specific to the Petitioners 
relate to business/commercial transactions between 
private individuals/entities, nature and consequence 
whereof have absolutely no adverse bearing on any public 
or governmental interest. Even purely civil dispute of 
financial/commercial nature between the company and 
private individual, pending before the civil courts, are 
made the subject matter of the reference, portraying 
those, as cases of illegal occupation of lands.  
 
37. 
This country has been achieved through the 
enormous sacrifices and relentless struggle of our 
forefathers, with a will, a clear vision, and a conviction 
for an independent democratic state, “wherein the 
principle of democracy, freedom, equality, tolerance and 
social justice, as enunciated by Islam, shall be fully 
observed” and “wherein the State shall exercise its 
powers and authority through the chosen representative 
of the people”, as a sacred trust,  “wherein shall be 
guaranteed fundamental rights including equality of 
status, of opportunity and before law, social, economic 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
45
and political justice, and freedom of thought, expression, 
belief, 
faith, 
worship 
and 
association”, 
“wherein, 
independence of judiciary shall be fully secured”. “So that 
the people of Pakistan may prosper and attain their 
rightful and honoured place amongst the nations of the 
World 
and 
make 
their 
full 
contribution 
towards 
international peace and progress and happiness of 
humanity”. 
 
The 
above 
vision, 
conviction 
and 
commitment find expression in the shape of the preamble 
to the Constitution of the Islamic Republic of Pakistan, 
1973 (“the Constitution”), the constitution, that we 
achieved through unremitting struggle of the people of 
this country, after years of the disillusionment and 
failures, has provided to us a complete scheme and an 
immaculate and robust mechanism for realizing the 
above dream and to translate the vision and aspirations 
of our founding fathers and the toiling millions of this 
country.  
 
38. Through its Article 4 the Constitution declared that 
to enjoy the protection of law, and to be treated in 
accordance with law is the inalienable right of every 
citizen, and that no action detrimental to the life, liberty, 
body, reputation or property of any person shall be taken 
except in accordance with law. And in terms of Article 5 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
46
declared obedience to the Constitution and law to be 
inviolable obligation of every citizen. Article 9 of the 
Constitution guarantees that no person shall be deprived 
of life or liberty save in accordance with law. The dignity 
of man has been protected as an inviolable right. 
Equality of all citizens before the law, and their 
entitlement to equal protection of law has been 
guaranteed through article 25.  
 
39. The Courts in Pakistan have jealously protected the 
fundamental rights conferred by the constitution. In the 
case of Pakistan Broadcasters Association PLD 2016 SC 
692, the Court reiterated the oft repeated constitutional 
principle as follows:- 
 
 “Undoubtedly no one can be deprived of his 
fundamental rights. Such rights being incapable of 
being divested or abridged. The legislative powers 
conferred on the State functionaries can be exercised 
only to regulate these rights through reasonable 
restrictions and that too as may be mandated by law 
and not otherwise. The authority wielding statutory 
powers 
conferred 
on 
it 
must 
act 
reasonably 
(emphasis supplied) and within the scope of the 
powers so conferred.”  
 
40. In the case of District Bar Association, reported as 
PLD 2015 SC 401, a bench consisting of the Full Court 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
47
pronounced 
that 
Prominent 
characteristics, 
which 
defined the Constitution and were its Salient Features 
included Democracy, Federalism, Parliamentary Form of 
Government 
blended 
with 
the 
Islamic 
Provisions, 
Independence of Judiciary, Fundamental rights, Equality, 
Justice and Fair Play, Protection and preservation of the 
rights of minorities, both as equal citizens of Pakistan 
and as minorities etc.  
 
In Watan Party Case, reported as PLD 2011 SC 997 
this Court cited with approval, its earlier pronouncement 
in the case of Eli Lilly Pakistan 2009 SCMR 127 which 
reads:- 
 
"It is the duty and obligation of the State on account 
of the various provisions of the Constitution to 
provide the atmosphere based on honesty by 
providing equal protection of law. Every citizen must 
be treated equally, dignity of human being life should 
be maintained, and liberty of life and honour must be 
guaranteed as envisaged in the Articles 9, 14 and 25 
of the “Constitution.”  
 
41. The significance of protecting liberty has also been 
highlighted by this Court in the case of Federation of 
Pakistan and others vs. Shaukat Ali Mian PLD 1999 SC 
1026 in the following words:- 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
48
“The perusal of the above quoted Article indicates 
that every citizen and every other person for the time 
being in Pakistan is guaranteed as his inalienable 
right to enjoy the protection of law and to be treated 
in accordance with law wherever he may be and in 
particular no action detrimental to the life, liberty, 
body, reputation or property of any person can be 
taken except in accordance with law.”  
 
42. The liberty and dignity of man have always 
remained sacrosanct and have been placed atop the 
fundamental/human rights pedestal. Islam has conferred 
upon human beings the highest level of dignity amongst 
all of Allah’s creation and secured and protected for them 
complete liberty within the prescribed limits.    
 
43. It was way back in the year 1212 that the Magna 
Carta impregnably secured the liberty, freedom, property 
and customs, for the people, and protected them from 
being banished or ruined, in the following words:- 
 
 “No freeman is to be taken or imprisoned or 
disseised of his free tenement or of his liberties or 
free customs, or outlawed or exiled or in any way 
ruined, nor will we go against such a man or send 
against him save by lawful judgement of his peers or 
by the law of the land. To no-one will we sell or deny 
or delay right or justice.”, 
 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
49
Whereas, Article (9) (1) of the International Covenant on 
Civil and Political Rights declared:  
“Everyone has the right to liberty and security of 
person. No one shall be subjected to arbitrary arrest 
or detention. No one shall be deprived of his liberty 
except on such grounds and in accordance with such 
procedure as are established by law”.  
 
Similarly, Article 9 of the Universal Declaration of Human 
Rights provides:-  
“No one shall be subjected to arbitrary arrest, 
detention or exile”. 
 
44. The renowned English Philosopher John Locke in 
his central philosophy believes in a government that 
provides, what he claims to be basic and natural given 
rights for its citizens, being the right to life, liberty, and 
property.  
 
45. Ronald Dworkin has coined the term ‘rights as 
trumps’ which posits that rights should, generally, trump 
other interests. While this is not to say that an 
individual’s fundamental rights may never be curtailed, it 
means that rights are not merely aspirations that may be 
trumped at the altar of expediency. Rather, that rights 
represent the contract between a State and its citizens 
and that rights may not be curtailed arbitrarily. 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
50
 
46. XXIV Amendment to the Constitution of the United 
States, places a restraint on enforcing any law which may 
abridge the privileges or immunities of the citizens of that 
country, or deprive them of life, liberty, or property, 
without due process of law, or deny to them equality or 
protection of laws in the following words:-  
 
“No state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any state deprive any 
person, of life, liberty, or property, without due 
process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws”. 
 
In the words of an Indian Supreme Court Judge:-  
 
“Life and personal liberty are the most prized 
possessions of an individual. The inner urge for 
freedom is a natural phenomenon of every human 
being. Respect for life, liberty and property is not 
merely a norm or a policy of the State but an 
essential requirement of any civilized society.” 
 
Chambers’ Twentieth Century Dictionary defines 
“liberty” as “Freedom to do as one pleases, the 
unrestrained employment of natural rights, power of 
free chance, privileges, exemption, relaxation of 
restraint, the bounds within which certain privileges 
are enjoyed, freedom of speech and action beyond 
ordinary civility…. 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
51
 
Dicey in his treatise on Constitutional Law observed 
that, “Personal liberty, as understood in England, 
means in substance a person’s right not to be 
subjected to imprisonment, arrest, or other physical 
coercion in any manner that does not admit of legal 
justification…  
 
Eminent 
English 
Judge 
Lord 
Alfred 
Denning 
expounded the concept of liberty in the following 
words: 
 
“By personal freedom I mean freedom of every 
law abiding citizen to think what he will, to say 
what he will, and to go where he will on his 
lawful occasion without hindrance from any 
person… It must be matched, of course, with 
social security by which I mean the peace and 
good order of the community in which we live… 
 
The concept has been textualized in Siddharam 
Satlingappa Mhetre AIR 2011 SC 312 as follows- 
 
 
“Life bereft of liberty would be without honour 
and dignity and it would lose all significance 
and meaning and the life itself would not be 
worth living. This is why “liberty” is called the 
very quintessence of a civilized existence…”  
 
47. Unfortunately, however, even after 72 years since 
the creation of our country, and despite 47 years since 
the adoption of the Constitution, we have not been able 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
52
to realize the spirit and essence of the ideals set out 
therein. To the contrary, we have even failed to adhere to 
some of its most basic commands and prescriptions. The 
people of this country are frequently denied their 
constitutionally guaranteed rights. Principles of equality, 
fairness, tolerance and respect for democratic norms are 
flouted 
with 
impunity. 
Dogmatism, 
intolerance, 
nepotism, 
cronyism, 
incompetence, 
regression, 
deception, false pretence, self-projection, misplaced sense 
of superiority, different biases, and prejudices, and 
corruption have seeped into our society and have now 
inundated it. Efforts, whenever made for the supremacy 
of the constitution, and the rule of law have been 
thwarted with full force. The principle of trichotomy of 
power and the concept of devolution have been trampled 
with contempt. Arrogance, self-righteousness and apathy 
are ruling the roost. We have come to this unfortunate 
pass, in most part, because of the repeated direct 
unconstitutional interventions, and manipulations by 
undemocratic forces. Lust of power, desire to capture, 
and rule, and pursuit of self-aggrandization, have 
resulted in violation of the prescribed jurisdictional limits 
and ceding of political space in governance. Aggravating 
this is the denial of grass root representation of the 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
53
people in the local government, which again is against 
our constitutional ethos, and violates the true essence 
and spirit of democracy. Public welfare and poverty 
alleviation are at the lowest rung of our priorities. The 
wide spread suppression of dissent is another anathema 
to our democracy. An egalitarian order remains a distant 
dream. 
ﮯﮭﺗ ﮯﺘﮨ ﺎﭼ ﻮﺟ ﻢﮨ ﺎﻨﮭﮑﯾد  ،ۓﺎﭘ ﺎﻧ ﮭﮑﯾد ﻮﺗ ﮏﻠﺗ با 
 
 
48. The present case is a classic example of trampling 
fundamental rights, unlawful deprivation of freedom, and 
liberty and the complete disregard for human dignity as 
guaranteed 
by 
the 
Constitution. 
NAB’s 
conduct 
throughout this case is a clear manifestation of their 
utter disregard for law, fair play, equity and propriety. 
Indeed, curbing loot, plunder and combating corruption 
is a noble cause. Nonetheless, the means, process and 
mechanism employed therefor should be within the 
parameters as prescribed and mandated by the law and 
not in derogation thereof. 
 
49. As per the preamble of the National Accountability 
Ordinance, 1999 (“NAO”) the bureau has been set up to 
eradicate corruption and corrupt practices and hold 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
54
accountable all those persons, accused of such practices 
and matters ancillary thereto. 
 
50. Section 22 of NAO confers jurisdiction on the 
Chairman NAB (“Chairman”), and grants him power to 
inquire into and investigate any suspected offence which 
appears to him on reasonable grounds to be an offence 
under the ordinance, whereas, clause (n) of Section 5 of 
NAO defines “offence”, as the offence of corruption and 
corrupt practices and other offences as defined in the 
said ordinance, including those as specified in the 
schedule thereto.  
 
51. Section 9 of NAO, through its 12 sub clauses 
describes various instances of corruption and corrupt 
practices.  
 
52. Section 17 of NAO, provides that the provisions of 
the Code of Criminal Procedure, 1898, shall, except those 
which may be inconsistent with any provision of the 
NAO, shall mutatis mutandis, apply to the proceedings 
under the NAO. 
 
53. In terms of Section 18 (c) proceedings under NAO 
against any person can be initiated where the Chairman 
or any officer authorized by him, forms an opinion that 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
55
so is necessary, and where they find it appropriate to 
initiate proceedings against any person, they shall refer 
the matter for inquiry or investigation.   
 
54. Section 24 of NAO prescribes that reference 
submitted to the Court shall contain the substance of the 
offence alleged to have been committed by the accused.  
 
55. The schedule referred to in Section 9 of NAO 
through its Item 3 prescribes rigorous imprisonment 
upto 10 years for an investigator of the NAB for giving 
false information or fabricating false evidence during 
inquiry into or investigation of an offence by the NAB.  
 
56. As discussed in detail earlier, the basis on which 
Chairman NAB decided to proceed in the matter remain 
unknown. If the purported complaints were the basis, it 
is not shown as to what exactly was alleged therein, and 
what information and material was placed before the 
NAB for it to decide that the nature and conduct of the 
management of the company fell within the ambit of 
Section 9 of NAO. Secondly, there was absolutely nothing 
before the NAB connecting the petitioners with the 
company so as to hold them responsible for any 
misconduct, 
malfeasance 
and 
misfeasance 
of 
the 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
56
company, and to prompt NAB to initiate an inquiry or 
investigation against them.  
 
57. The reference contains five (5) different allegations 
against the company: the first being of operating the 
scheme and proceedings with the subject project without 
permission from the LDA, the second being of obtaining 
approval from the TMA on the basis of forged documents, 
the third is of merging state /shaamlat lands into 
Paragon City, and selling away the same, the fourth is of 
cheating members of the public at large, and the fifth and 
the last is of occupying lands of two private individuals. 
Not a single question regarding any of the above, was put 
to the petitioners by the NAB, though they interrogated 
the petitioners for long durations several times, and sent 
them many call up notices, commencing at least from 
March 2018 and continuing earliest upto October 2018.  
 
58. The queries raised through the call up notices by 
the NAB to the petitioners, in relation to the company 
were only in respect of certain payments that they 
received from the company and regarding certain land 
transaction between them and the company. For the sake 
of clarity, we may observe here that certain queries were 
also raised by NAB regarding the payment the petitioners 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
57
received from the Executive builder, whom they dubbed 
as a proxy of the company. As noted by us earlier, NAB 
has not been able to show any illegality in the aforesaid 
transactions and or that the petitioners have dishonestly 
and unlawfully enriched themselves by way of the same. 
In any event, as observed earlier, the transactions 
exclusively being between private individuals/entities 
and the same have had no adverse bearing on any public 
or governmental interest, neither was it the cause of the 
alleged non delivery of plots and or the non-refund of the 
payment to the purported complainant customers of the 
company, are wholly irrelevant and inconsequential, and 
could not provide any cause to the NAB, to initiate any 
proceeding in that regard.  
59. We have already observed that the dispute between 
the two individuals namely, Shahid Butt and Haji 
Muhammad Rafiq and the company, which have been 
portrayed as illegal occupation of their lands by the 
company, 
through 
accused 
No.1 
and 
the 
Petitioner/accused No.3, were purely of a civil and 
commercial nature. These disputes were/are pending 
before the civil court, also could not have justifiably been 
made part of the Reference.    
 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
58
60. Prima facie there seems no reasonable ground to 
believe that the petitioners are or have been involved in 
the commission of any offence triable under the NAO, so 
that they could have been labelled or treated as 
“accused” within the meaning of Section 5(a) of NAO.  
 
61. NAB, as yet, has not been able to connect the 
Petitioners either as members, partners or directors of 
the company and/or even, for that they promoted, 
established or operated the same.  
 
62. NAB so far has also not been able to show that the 
conduct of the Petitioners as has emerged before us in 
relation to the company constitute any offence within the 
meaning of Section 9 of NAO.  
 
63. The object, purpose and reason behind the 
initiation of the purported inquiry and investigation and 
the arrest of the accused and keeping them incarcerated 
for a long period of fifteen months, prima facie do not 
appear to be in consonance with, and/or in conformity 
with the NAO.  
64. The Constitution requires our state to ensure that 
its citizen and all those living therein, are not deprived of 
their constitutionally guaranteed rights and that their 
dignity, honour, liberty, freedom and property, is fully 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
59
secured and protected. It also commands the state to 
promote and ensure a just and fair democratic 
dispensation, 
as 
prescribed 
thereby, 
without 
any 
tampering or perversion. Undoubtedly, preventing and 
fighting graft and corruption is also an important 
obligation/function of the state, but unfortunately the 
manner in which this objective has been pursued, 
particularly over the political spectrum, is a sad affair. 
Almost right from our very inception we have had one law 
after the other, though at times with some gaps, 
providing 
for 
debarring 
or 
disqualifying 
our 
politician/holder of public offices, and/or putting them 
on trial. The first in the series was the “Public and 
Representative 
Offices 
(Disqualification) 
Act, 
1949 
(PRODA) was passed by the Legislature which became 
effective from 15th August, 1947. This Act provided for 
debarring from public life for a suitable period of persons 
judicially found guilty of misconduct in any public office. 
It was repealed on 21st September, 1954. On 7th August, 
1958 while the country was under the Martial Law, 
Elective Bodies (Disqualification) Order, 1959 (EBDO) 
was promulgated which remained enforced only until 31st 
December, 1960 (EBDO provided for disqualifications of 
certain categories of persons from being a member or a 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
60
candidate for the membership of any elective body until 
31st December, 1966. On 9th January, 1977, Holders of 
Representative Offices (Prevention of Misconduct) Act IV 
of 1976 and Parliament and Provincial Assemblies 
(Disqualification from Membership) Act V of 1976 were 
passed which provided for trial of offences of misconduct 
of holders of public offices. On 13th November, 1977 
Holders 
of Representative 
Offices (Punishment for 
Misconduct) Order (President’s Post Proclamation) Order 
No.16 of 1977 (P.P.P.O. 16) and Parliament and 
Provincial Assemblies (Disqualification for Membership) 
Order (President’s Post Proclamation Order 17 of 1977 
(P.P.P.O. 17) were promulgated. P.P.P.Os. 16 and 17 of 
1977, however, did not repeal Holders of Representative 
Offices (Prevention of Misconduct) Act, 1976 and 
Parliament and provincial Assemblies (Disqualification 
for Membership) Act, 1976 with the result from 13-11-
1977 onwards we had on the Statue Books Act IV of 
1976, Act V of 1976, P.P.P.O. 16 of 1977 and P.P.P.O. 17 
of 1977, all dealing with punishment for misconduct and 
disqualification of the holders of public offices. Holders of 
Representative Offices (Prevention of Misconduct) Act, 
1976 
and 
Parliament 
and 
Provincial 
Assemblies 
(Disqualification for Membership) Act, 1976 were finally 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
61
repealed 
by Parliament and 
Provincial 
Assemblies 
(Disqualification for Membership) (Amendment) Act, 1991 
which was assented to by the President on 28-4-1991. 
P.P.P.O. 16 of 1977 was amended through P.P.P.O. 5 of 
1978 dated 17-1-1978 and President’s Order 1 of 1981. 
Similarly, P.P.P.O. 17 was also amended by Ordinance IX 
of 1990 dated 15-10-1990 and Act VII of 1991 dated 28-
4-1991.  
65. On 18th November, 1996, Ehtesab Ordinance CXI 
of 1996 was promulgated which repealed P.P.P.O 16 and 
P.P.P.O 17 of 1997, Ordinance CXI was amended by 
Ordinance CXXIII of 1996, Ordinance VII of 1997 and 
Ordinance XI of 1997. Ordinance CXI amended as 
aforesaid was repealed and replaced by Ordinance XX of 
1997. Ordinance XX was repealed by Act IX of 1997. Act 
IX of 1997 was amended through Ordinance II of 1998 on 
4th February, 1998 but this Ordinance stood repealed on 
3rd June, 1998 as it was not passed by the Parliament.” 
 
66. Rather than doing any good to the country or our 
bodypolitic 
and 
cleansing 
the 
fountainheads 
of 
governance, these laws and the manner in which they 
were enforced, caused further degeneration and created 
chaos, since the same were framed and applied with an 
oblique motive of arm twisting and pressurizing political 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
62
opponents into submission, subjugation and compliance, 
or remove them from the electoral scene at least 
temporarily. These laws were successfully employed as 
tools to change political loyalties, for splintering and 
fracturing political parties. Pygmies were selected, 
nurtured, promoted, and brought to prominence and 
power. People with notorious backgrounds and criminal 
credentials were thrust to rule us in various capacities 
with predictable results. Similarly, those, who caused 
death, destruction and mayhem in our society were 
trained, financed, protected, promoted and eulogized, 
thus, turning them into Frankensteins. Meanwhile 
corruption, misconduct and malpractice in governance 
kept growing at exponential rates and became all 
pervading. None of the state institutions whichsoever 
remained free from this morass.  
 
67. The NAO was promulgated by the Military regime of 
General Pervaiz Musharaf on 16.11.1999, repealing the 
previously 
enacted 
Ehtesab 
Act, 
1997. 
The 
NAB 
Ordinance from its very inception became increasingly 
controversial, its image has come under cloud and there 
is a wide spread perception of it being employed as a tool 
for oppression and victimization of political opponents by 
those in power. It is frequently alleged that the Bureau is 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
63
being 
flagrantly 
used 
for 
political 
engineering. 
Discriminatory approach of NAB also is affecting its 
image and has shaken the faith of the people in its 
credibility and impartiality. The bureau seems reluctant 
in proceeding against people on one side of the political 
divide even in respect of financial scams of massive 
proportion while those on the other side are being 
arrested and incarcerated for months and years without 
providing any sufficient cause even when the law 
mandates investigations to be concluded expeditiously 
and trial to be concluded within 30 days. Nonetheless, 
investigation is often not concluded for months and cases 
remain pending for years. It is because of lack of 
professionalism, expertise and sincerity of cause that the 
conviction rate in NAB cases is abysmally low. The above 
is certainly not serving the national interest, rather 
causing irretrievable harm to the country, nation and 
society in multiple ways. It was in view of the above 
distressful situation that the former Chief Justice Asif 
Saeed Khan Khosa, speaking for this Court during the 
opening ceremony of the Judicial Year 2019-20 observed 
as follows:- 
 
 “We as a relevant Organ of the State also feel 
that the growing perception that the process of 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
64
accountability being pursued in the country at 
present is lopsided and is a part of political 
engineering is a dangerous perception and 
some remedial steps need to be taken urgently 
so that the process does not lose credibility. 
Recovery of stolen wealth of the citizenry is a 
noble cause and it must be legitimately and 
legally pursued where it is due but if in the 
process the constitutional and legal morality of 
the society and the recognized standards of 
fairness and impartiality are compromised then 
retrieval of the lost constitutional and legal 
morality may pose an even bigger challenge to 
the society at large in the days to come”. 
 
 
68. It is in the context of such highhandedness and 
brazen disregard for human dignity that the Bureau has 
attracted ignominy and notoriety beyond our frontiers 
too. In a recent review, the European Commission also 
highlighted NAB’s partisan conduct and urged the 
government to give it more autonomy so as to allow it to 
function independently. The Commission observed that 
there was a serious deterioration of freedom in Pakistan, 
thus, raising concerns about the NAB’s role as a tool to 
muzzle dissent.  
 
69. It is the duty and obligation of the State to ensure 
that the Constitution reigns supreme and the rule of law 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
65
is all pervading so as to create an environment conducive 
to the expression of diverse ideas. The State is obliged to 
ensure that every citizen is treated equally and that his 
life, dignity, honour and property is fully secured.  
 
70. This Court in the case of Ismaeel Vs. The State 
(2010 SCMR 27) observed as follows: 
 
“Our Constitution is based on the concept of 
welfare State wherein the principle of democracy, 
freedom, equality tolerance and social justice as 
enunciated by Islam, should fully be observed. The 
mandate of the Constitution envisages that every 
person has to obey the Constitution as it demands 
loyalty and obedience. Constitution is a social 
binding contract between the State and the people. 
Every organ of the State should act within its 
parameters as defined by the Constitution without 
meddling into the matters of the other organs. Media 
who acts as a fourth and equally important pillar of 
the State, needs to highlight the character of the 
Founder of Pakistan so that people can adopt his 
teachings to get rid of evils like greed and lust and 
toil for the welfare of the State and people of 
Pakistan”. 
 
71. In exercising its power and authority, NAB should 
not lose sight of the well-entrenched legal principle that 
no power conferred upon executive or public authority is 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
66
unfettered. Every executive act has to be founded in law 
and has to be exercised as prescribed 
thereby, 
particularly, where the exercise of such power, tends to 
intrude into the constitutionally guaranteed rights. This 
is even more pertinent when such action violates the 
liberty of a person, or is likely to hurt his honour, and 
dignity. The bureau should remain mindful of the fact 
that the power to arrest, as conferred by Section 18 (e) 
read with Section 24 of the NAO, is always subject to 
review by the constitutional courts on the ground of 
fairness, proportionality, reasonableness, and necessity. 
It hardly needs any emphasis that all powers in a 
democratic state governed under a Constitution, are to be 
exercised justly, fairly and for the public good only. No 
authority or state institution, howsoever mighty can 
unlawfully 
curtail 
the 
rights 
guaranteed 
by 
the 
Constitution.  
 
72. Arrest of any person is a grave matter. Capricious 
exercise 
of 
the 
power 
to 
arrest 
has 
deleterious 
consequences, thus highlighting the need to exercise it 
with care, caution and sensitivity. Arrest of a person has 
to be justified not only by referring to prima facie 
evidence and adequate actionable material sufficiently 
connecting the person with the offence/crime complained 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
67
of, but also by showing that in the given circumstances, 
there were no other less intrusive or restrictive means 
available. The power of arrest should not be deployed as 
a tool of oppression and harassment.  
 
73. This Court, after exhaustively examining the 
provisions of Cr.P.C. in the case titled “Muhammad 
Bashir v. Station House Officer, Okara” [PLD 2007 SC 
539] held that arrest of an accused by a police officer 
would not be justified on the sole ground that an FIR was 
registered and because the latter was nominated therein. 
There must be sufficient incriminating material to justify 
deprivation of liberty. The august Supreme Court has 
explicitly declared arbitrary exercise of power to arrest as 
'abuse of authority'. The above view was recently 
reaffirmed by a larger Bench of the august Supreme 
Court in the case titled “Mst. Sughran v. The State” [PLD 
2018 SC 595] by observing;        
 
“Ordinarily 
no 
person 
is 
to 
be 
arrested 
straightaway 
only 
because 
he 
has 
been 
nominated as an accused person in an FIR or in 
any other version of the incident brought to the 
notice of the investigating officer by any person 
until the investigating officer feels satisfied that 
sufficient justification exists for his arrest and for 
such justification he is to be guided by the 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
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relevant provisions of the Code of Criminal 
Procedure, 1898 and the Police Rules, 1934. 
According to the relevant provisions of the said 
Code and the Rules a suspect is not to be 
arrested straightaway or as a matter of course 
and, unless the situation on the ground so 
warrants, the arrest is to be deferred till such 
time that sufficient material or evidence becomes 
available on the record of investigation prima 
facie satisfying the investigating officer regarding 
correctness of the allegations levelled against 
such suspect or regarding his involvement in the 
crime in issue.”  
 
  
74. In a judgment of the House of Lords titled 
“Liversidge v. Anderson” reported as [1941] 3 All E.R 
338, Lord Atkin, in the context of an action for false 
imprisonment, has highlighted the importance of liberty 
as follows. -   
 
 “The plaintiff’s right to particulars, however, is 
based upon a much broader ground, and on a 
principle which again is one of the pillars of liberty, in 
that in English law every imprisonment is prima facie 
unlawful and that it is for a person directing 
imprisonment to justify his act. The only exception is 
in respect of imprisonment ordered by a judge, who 
from the nature of his office cannot be sued, and the 
validity of whose judicial decisions cannot, in such 
proceedings as the present, be questioned.”  
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
69
 
75. While dealing with the cases pertaining to the 
liberty of a person, we should not lose sight of a 
fundamental principle of criminal jurisprudence that a 
person is presumed to be innocent until proven guilty. 
This principle stems from a general rule that burden of 
proof in a criminal case is on the prosecution to establish 
the guilt of an accused beyond reasonable doubt. The 
justification for the above principle is that the outcome a 
wrongful conviction is far worse than that of a wrongful 
acquittal. We should also remain mindful of the fact that 
the public interest in ensuring that no innocent person is 
incarcerated, subject to humiliation and convicted, 
greatly overwhelms the public interest in securing 
conviction of the guilty. Thus, the concept of the 
presumption of innocence is imperative, not only to 
protect an accused on trial, but to secure and maintain 
public confidence in the fairness, impartiality, integrity 
and security of the criminal justice system. 
 
76. In the case of Rajiv Singh v. The State of Bihar & 
Another, decided on 16 December, 2015 the Supreme 
Court of India dilated upon the above theme as follows: - 
 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
70
“In his treatise, The Law of Evidence, Professor 
Ian Dennis while dwelling on the theme of 
allocation 
of 
burden 
in 
criminal 
cases, 
elaborated on the significance and purport of 
presumption of innocence and the general rule 
of the burden of proof. While reiterating the 
fundamental notion of criminal jurisprudence, 
that a person is presumed to be innocent until 
proven guilty and that the burden of proof in a 
criminal case is on the prosecution to establish 
the guilt of accused beyond reasonable doubt, 
the author underlined that the acknowledged 
justification of such presumption is that the 
outcome of a wrong conviction is regarded as a 
significantly 
worse 
harm 
than 
wrongful 
acquittal.  
 
Viewed 
from 
the 
moral 
and 
political 
perspectives, it has been observed that in 
liberal states, the rule about the burden of proof 
has been elevated to the status of fundamental 
human right encompassing the assurance of 
liberty, dignity and privacy of the individual 
and from this standpoint it is essential that the 
state should justify fully its invasion of the 
individuals interest by proving that he had 
committed an offence, thereby abusing the 
freedom of action accorded to him or her by the 
liberal 
state. 
The 
significance 
of 
such 
presumption finds insightful expression in the 
following extract of State vs. Coetzee [1997] 2 
L.R.C. 593, South African Constitutional Court 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
71
in the words of Sachs, J.: There is a paradox at 
the heart of all criminal procedure in that the 
more serious the crime and the greater the 
public interest in securing convictions of the 
guilty, the more important do constitutional 
protections of the accused become. The starting 
point 
of 
any 
balancing 
enquiry 
where 
constitutional rights are concerned must be that 
the public interest in ensuring that innocent 
people are not convicted and subjected to 
ignominy 
and 
heavy 
sentences 
massively 
outweighs the public interest in ensuring that a 
particular criminal is brought to book. Hence the 
presumption of innocence, which serves not 
only to protect a particular individual on trial, 
but to maintain public confidence in the 
enduring integrity and security of the legal 
system. Reference to the prevalence and 
severity of a certain crime therefore does not 
add anything new or special to the balancing 
exercise. The perniciousness of the offence is 
one 
of 
the 
givens, 
against 
which 
the 
presumption of innocence is pitted from the 
beginning, not a new element to be put into the 
scales as part of a justificatory balancing 
exercise. If this were not so, the ubiquity and 
ugliness argument could be used in relation to 
murder, rape, car-jacking, housebreaking, drug-
smuggling, corruption the list is unfortunately 
almost endless, and nothing would be left of the 
presumption of innocence, save, perhaps, for its 
relic status as a doughty defender of rights in 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
72
the most trivial of cases. The quintessence of 
the philosophy embedded in the above extract 
is that the presumption of innocence serves not 
only to protect a particular individual on trial 
but to maintain public confidence in the 
enduring integrity and security of the legal 
system.” 
 
77. There is only one fundamental right in the 
Constitution of 1973, which is unconditional, inviolable 
and cannot be circumscribed under any circumstances. 
This is the dignity of man and one of the grave 
consequences 
of 
pre-arrest 
confinement, 
is 
the 
humiliation and disgrace resulting from such arrest, for 
not only the accused but also his family and persons 
attached to him. Arrest causes irreparable harm to a 
person’s reputation and standing in society, often 
subjecting him to hate, vitriol, and infamy. In today’s age 
of a robust print and electronic media, arresting an 
accused and levelling allegations against him gives rise to 
a vicious campaign of whispers and murmurs where the 
accused and his family are subjected to humiliation, 
embarrassment, 
and 
agony. 
It, 
thus, 
irrevocably 
jeopardises a person’s dignity, subjecting him to physical 
and psychological repercussions concomitant with life in 
prison. Often a person in custody loses his job and is 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
73
also prevented from preparing his defence. The burden of 
his detention frequently falls heavily on the innocent 
members of his family. More often than not people do not 
differentiate between arrest before conviction and that 
after conviction. This sentiment was also shared by the 
Indian Supreme Court in the case of Arnesh Kumar v. 
State of Bihar and another (AIR 2014 SC 2756 at 
2758) where it observed that: 
 
“Arrest brings humiliation, curtails freedom 
and cast scars forever. Law makers know it so 
also the police. There is a battle between the 
law makers and the police and it seems that 
police has not learnt its lesson; the lesson 
implicit and embodied in the Cr.PC. It has not 
come out of its colonial image despite six 
decades 
of 
independence, 
it 
is 
largely 
considered as a tool of harassment, oppression 
and surely not considered a friend of public. 
The need for caution in exercising the drastic 
power of arrest has been emphasized time and 
again by Courts but has not yielded desired 
result. Power to arrest greatly contributes to 
its arrogance so also the failure of the 
Magistracy to check it. Not only this, the power 
of arrest is one of the lucrative sources of 
police corruption. The attitude to arrest first 
and then proceed with the rest is despicable. It 
has become a handy tool to the police officers 
who lack sensitivity or act with oblique motive.  
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
74
 
Law Commissions, Police Commissions and 
this Court in a large number of judgments 
emphasized the need to maintain a balance 
between individual liberty and societal order 
while exercising the power of arrest. Police 
officers make arrest as they believe that they 
possess the power to do so. As the arrest 
curtails freedom, brings humiliation and casts 
scars forever, we feel differently. We believe 
that no arrest should be made only because 
the offence is non-bailable and cognizable and 
therefore, lawful for the police officers to do so. 
The existence of the power to arrest is one 
thing, the justification for the exercise of it is 
quite another. Apart from power to arrest, the 
police officers must be able to justify the 
reasons thereof. No arrest can be made in a 
routine manner on a mere allegation of 
commission of an offence made against a 
person. It would be prudent and wise for a 
police officer that no arrest is made without a 
reasonable satisfaction reached after some 
investigation as to the genuineness of the 
allegation…” 
 
78. The Indian Supreme Court also had the 
occasion to dilate upon this aspect in Moti Ram and 
Ors. V. State of Madhya Pradesh (AIR 1978 SC 
1594) where it held: 
 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
75
“The consequences of pre-trial detention are 
grave. Defendants presumed innocent are 
subjected to the psychological and physical 
deprivations of jail life, usually under more 
onerous conditions than are imposed on 
convicted defendants. The jailed defendant 
loses his job if he has one and is prevented 
from contributing to the preparation of his 
defence. Equally important, the burden of 
his detention frequently falls heavily on the 
innocent members of his family”.  
 
79. In the case of Siddharam Satlingappa Mhetre v. 
State of Maharashtra and Ors (AIR 2011 SC 312 at 330) 
it was observed as follows: 
“A 
great 
ignominy, 
humiliation 
and 
disgrace is attached to the arrest. Arrest 
leads to many serious consequences not 
only for the accused but for the entire 
family 
and 
at 
times 
for 
the 
entire 
community. Most people do not make any 
distinction between arrest at a pre-
conviction stage or post-conviction stage.” 
 
80. While dealing with the question of whether or not 
bail is to be granted to an accused, it has to be kept in 
mind that the object of bail is to secure the attendance of 
the accused at the trial. The object is neither punitive nor 
preventive. Imprisonment of a person and deprivation of 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
76
his liberty, cannot be described other than, being a 
punishment, unless no less restrictive alternative is 
available to ensure that the accused will stand his trial 
when called upon to do so. All civilized societies recognise 
the 
principle 
that 
punishment 
comes 
only 
after 
conviction, and the presumption of innocence subsist 
with the accused, till he is handed down punishment 
after trial. It hardly needs any reiteration that the 
detention either pre-trial or during trial causes great 
hardship.  
 
81. In the case of Sanja Chandra v. Central Bureau of 
Investigation (AIR 2012 SC 830 at 837-838) the Court 
has dilated upon the issue as follows: 
“In bail applications, generally, it has been laid 
down from the earliest times that the object of 
bail is to secure the appearance of the accused 
person at this trail by reasonable amount of 
bail. The object of bail is neither punitive nor 
preventative. Deprivation of liberty must be 
considered a punishment, unless it can be 
required to ensure that an accused person will 
stand his trial when called upon. The courts 
owe more than verbal respect to the principle 
that punishment begins after conviction, and 
that every man is deemed to be innocent until 
duly tried and duly found guilty. From the 
earliest times, it was appreciated that detention 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
77
in custody pending completion of trial could be a 
cause of great hardship. From time to time, 
necessity demands that some un-convicted 
persons should be held in custody pending trial 
to secure their attendance at the trial but in 
such cases, ‘necessity’ is the operative test. In 
this country, it would be quite contrary to the 
concept of personal liberty enshrined in the 
Constitution 
that 
any 
person 
should 
be 
punished in respect of any matter, upon which, 
he has not been convicted or that in any 
circumstances, he should be deprived of his 
liberty upon only the belief that he will tamper 
with the witnesses if left at liberty, save in the 
most extraordinary circumstances. Apart from 
the question of prevention being the object of a 
refusal of bail, one must not lose sight of the 
fact that any imprisonment before conviction 
has a substantial punitive content and it would 
be improper for any Court to refuse bail as a 
mark of disapproval of former conduct whether 
the accused has been convicted for it or not or to 
refuse bail to an unconvicted person for the 
purpose of giving him a taste of imprisonment 
as a lesson.”  
 
82. It hardly needs any mention that the constitutional 
jurisdiction has been conferred on the High Court to 
advance the cause of justice and not to frustrate or defeat 
the intent of law. In the case of National Accountability 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
78
Bureau through Chairman Vs. Murad Arshad and others 
(PLD 2019 SC 250), this Court has cited with approval 
the above as expressed in the case of Hema Misra as 
follows:- 
 
“the 
Constitution 
has 
to 
be 
exercised 
with 
circumspection 
and 
caution 
as 
extraordinary 
jurisdiction is invoked and exercised to advance the 
cause of justice and not to frustrate it or to defeat the 
intent of law. The jurisdiction under Article, 199 of 
the Constitution, 1973 are therefore to be exercised to 
prevent miscarriage of justice and abuse of NAO, 
1999”. 
 
83. As observed in the case of Ismail Vs. The State 
(2010 SCMR 27), the interest of this country can only be 
secured and served when the executive and judicial 
machinery, 
while 
performing 
their 
functions 
and 
exercising their duties adhere to law. The state organs 
should 
remain 
particularly 
sensitive 
towards 
the 
mandate of the constitution and the prescription of law, 
when it comes to fundamental rights.  Under no 
circumstances 
should 
the 
courts, 
thus, 
condone 
highhandedness or look the other way as the State 
deprive citizens of their liberty in derogation of the law 
and the Constitution.  
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
79
 
 
84. In matters where curtailment of liberty is in issue, 
judges should apply their mind, fully realizing the 
sensitivity of the matter and should not allow the 
authorities to treat constitutional guarantees flippantly. 
It may here be beneficial to refer to the case of Zaigham 
Ashraf Vs. The State (2016 SCMR 18), where this Court 
has made the following observation:- 
 
“To curtail the liberty of a person is a serious 
step in law, therefore, the Judges shall apply 
judicial mind with deep thought for reaching at a 
fair and proper conclusion albeit tentatively 
however, this exercise shall not to be carried out 
in vacuum or in a flimsy and casual manner as 
that will defeat the ends of justice because if the 
accused charged, is ultimately acquitted at the 
trial then no reparation or compensation can be 
awarded to him for the long incarceration, as the 
provisions of Criminal Procedure Code and the 
scheme of law on the subject do not provide for 
such arrangements to repair the loss, caused to 
an accused person, detaining him in Jail without 
just cause and reasonable ground.” 
 
85. In the case of Federation of Pakistan Vs. Ibrahim 
Textile Mills Ltd and others (1992 SCMR 1898), it has 
been held as under:- 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
80
“As regards his contention that discretionary relief 
should not have been granted to the respondents by 
the High Court, it needs be said that discretion is not 
desire of the Judge but regulated by law. Discretion 
comes into play to choose one of the two or more 
alternatives, all of which are lawful. 1t is not H 
proper exercise of discretion to refuse relief to a party 
to which it is entitled under law.”  
 
86. In cases where the question of liberty and dignity of 
an 
individual 
is 
involved, 
strict 
scrutiny 
of 
the 
prosecution’s case is required by the courts, as in the 
words of John Marshal the great Chief Justice of the US 
Supreme Court “we should never forget that it is a 
Constitution we are expounding (McCulloch v. Maryland, 
17 U.S. 4 Wheat. 316 (1819))”. 
 
87. In the case of Tariq Bashir Vs. The State (PLD 1995 
SC 34), it has been held as under: - 
 
“As regards the first category of offences (punishable 
with death, or imprisonment for life, or with ten 
years' imprisonment) the provisions of section 497(1) 
are not punitive in nature. There is no concept of 
punishment before judgment in the criminal law of 
the land. The question of grant/refusal of 'nail is to 
be determined judiciously having regard to the facts 
and 
circumstances 
of 
each 
case. 
Where 
the 
prosecution satisfies the Court, that I there are 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
81
reasonable grounds to believe that the accused has 
committed the crime falling in the first category the 
Court must refuse bail. On the other hand where the 
accused satisfies the Court that there are not 
reasonable grounds to believe that he is guilty of 
such offence, then the Court must release him on' 
bail. For arriving at the conclusion as to whether or 
not there are reasonable, grounds to believe that the 
accused is guilty of offence punishable with death, 
imprisonment for life or with ten years' imprisonment, 
the Court will not conduct a preliminary trial/inquiry 
but will only make tentative assessment, i.e. will look 
at the material collected by the police for and against 
the accused and be prima facie satisfied that some 
tangible evidence can be offered which, if left 
unrebutted, may lead to the inference of guilt. Deeper 
appreciation of the, evidence and circumstances 
appearing in the case is neither desirable nor 
permissible at bail stage. So, the Court will not 
minutely examine the merits of the case or plea of 
defence at that stage. 
 
  
88. Courts while dealing with the grant of bail and the 
justifiable exercise of power of arrest have to maintain a 
balance 
between 
two 
fundamental 
but 
conflicting 
demands of personal liberty of the accused on one hand 
and the investigational right of the police on the other 
hand. Or between Individual rights versus societal 
interests. This balancing act has been described in the 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
82
case of Vaman Narain Ghiya v. State of Rajasthan ((2009) 
2 SCC 281 at 287) in the following terms:  
“Liberty of a citizen is undoubtedly important 
but this is to balance with the security of the 
community. A balance is required to be 
maintained between the personal liberty of the 
accused and the investigational right of the 
police. It must result in minimum interference 
with the personal liberty of the accused and the 
investigational right of the police. It must result 
in minimum interference with the personal 
liberty of the accused and the right of the police 
to investigate the case. It has to dovetail two 
conflicting demands, namely, on the one hand 
the requirements of the society for being 
shielded from the hazards of being exposed to 
the misadventures of a person alleged to have 
committed a crime; and on the other, the 
fundamental canon of criminal jurisprudence 
viz. the presumption of innocence of an accused 
till he is found guilty. Liberty exists in 
proportion to wholesome restraint, the more 
restraint on others to keep off from us, the more 
liberty we have. (See A.K. Gopalan v. State of 
Madras)” 
. 
 
89. In the words of Aharon Barak the constitutional 
rights of a person can only be curtailed when there exists 
a proper purpose, a rational connection and necessary 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
83
means, and further that proper relation between the 
benefit gained by realizing the proper purpose, and the 
harm caused to the constitutional right. According to 
Barak this principle of proportionality is applied to 
achieve a balance between the benefit gained and the 
resultant prejudice that is caused to the rights.  
 
90. Thus, any deprivation of liberty or curtailment of 
rights guaranteed by the constitution has to be 
adequately justified on the touchstone of the principle of 
proportionality, unreasonableness and necessity. The 
limitation must be for proper purpose rational and 
necessary and the prejudice caused to the constitutional 
rights thereby must be proportional to the benefit 
achieved. In the case of ‘R. v. Oakes’ [(1986) 1 S.C.R. 
103] the Supreme Court of Canada has elucidated the 
principle as follows;  
  
“To establish that a limit is reasonable and 
demonstrably justified in a free and democratic 
society, two central criteria must be satisfied. 
First, 
the 
objective, 
which 
the 
measures 
responsible for a limit on a Charter right or 
freedom are designed to serve, must be "of 
sufficient importance to warrant overriding a 
constitutionally protected right or freedom": R. v. 
Big M Drug Mart Ltd., supra, at p. 352. The 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
84
standard must be high in order to ensure that 
objectives which are trivial or discordant with 
the principles integral to a free and democratic 
society do not gain s. 1 protection. It is 
necessary, at a minimum, that an objective 
relate to concerns which are pressing and 
substantial in a free and democratic society 
before it can be characterized as sufficiently 
important.     
 
Second, once a sufficiently significant 
objective is recognized, then the party invoking 
s. 1 must show that the means chosen are 
reasonable and demonstrably justified. This 
involves "a form of proportionality test": R. v. Big 
M Drug Mart Ltd., supra, at p. 352. Although the 
nature of the proportionality test will vary 
depending on the circumstances, in each case 
courts will be required to balance the interests 
of society with those of individuals and groups. 
There 
are, 
in 
my 
view, 
three 
important 
components of a proportionality test. First, the 
measures adopted must be carefully designed 
to achieve the objective in question. They must 
not be arbitrary, unfair or based on irrational 
considerations. In short, they must be rationally 
connected to the objective. Second, the means, 
even if rationally connected to the objective in 
this first sense, should impair "as little as 
possible" the right or freedom in question: R. v. 
Big M Drug Mart Ltd., supra, at p. 352. Third, 
there must be a proportionality between the 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
85
effects of the measures which are responsible 
for limiting the Charter right or freedom, and the 
objective which has been identified as of 
"sufficient importance".  
  
91. Discretion has been granted to the constitutional 
courts in order to widen the scope of their power and 
competence, albeit within the prescribed parameters. The 
constitutional courts are the guardian of the constitution, 
and thus required to ensure that the executive refrain 
from violating the constitutional mandate, and to stop 
such violation when it occurs. The Court has to review 
the executive actions and the conduct of the public 
authorities on the touchstone of fairness, reasonableness 
and 
proportionality. 
They 
should 
not 
hesitate 
in 
performing 
their 
constitutional 
duty 
objectively, 
particularly, when it comes to the matter of rights that 
have been guaranteed by the constitution, we should 
remain mindful of the sensitivity of such issues, as 
unless the constitutionally guaranteed rights protections 
and privileges are respected and safeguarded the 
situation shall inevitably degenerate into chaos and 
anarchy. People wielding power should not lose sight of 
the fact that the constitutionally guaranteed rights have 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
86
been obtained and secured by the people of this country 
through a social contract in the shape of the constitution.    
 
 
92. Before parting, it is worth recalling Antonio 
Gramsci’s exhortation to civil society to be intellectually 
pessimistic but with a will that is optimistic. Legal 
protections, however sacrosanct, are inadequate to 
preserve liberties in a society that values outcomes over 
due process and is happy to sacrifice procedural 
safeguards at the altar of expediency. Until we value the 
ideals of democracy and liberty, we shall forever remain 
shackled not only deprived of the rights afforded to us by 
the Constitution but also unable to gain our rightful 
place in the comity of nations. As Thucydides wisely 
proclaimed “the strong will continue to do what they can 
and the weak shall continue to suffer what they must.” 
Our salvation, thus, lies not in suppressing ideas we 
disagree with but in demanding freedom of thought, 
conscience, and expression for those whom we most 
vociferously disagree with. Until we create a culture of 
transparency, liberty, civility, and democratic values, our 
desire for peace and order shall continue to elude us. To 
borrow from Habib Jalib:  
 
C.P. No. 2243-L & 2986-L of 2019 
 
 
 
87
 
ﻮﮨ ﯽﮩﺑ ﻦﻣا روا ﮯﮨر ﻢﻠظ 
ﻮﮩﮐ ﯽﮨ ﻢﺗ ﮯﮨ ﻦﮑﻤﻣ ﺎﯿﮐ 
 
93.  
In the end, 
we may observe that the 
observations hereinabove are merely tentative in nature 
and shall have no bearing on the outcome of the 
reference.  
Above are the reasons for our short order dated 
17.03.2020. 
 
Judge 
 
Judge  
Islamabad the 
17th March 2020 
 
Approved for reporting