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Petitioner: Muhammad Irfan VS Respondent: Chairman NAB and Others
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Muhammad Iqbal Kalhoro Title: Muhammad Irfan vs Chairman NAB and Others Case No.:Const. P. 1559/2021, Const. P. 2356 of 2019, Const. P. 1637/2020, Const. P.
1638/2020, Const. P. 1639/2020, Const. P. 1640/2020, Const. P. 1641/2020 of 2020, Const. P. 1776/2019, Const. P. 1850/2019, Const. P. 1851/2019, Const. P. 2976/2019, Const. P. 2236/2019, Const. P. 2235/2019, Const. P. 6623/2019, Const. P. 8474/2019, Const. P. 584/2020, Const. P. 585/2020, Const. P. 586/2020 Date of Judgment:2021-10-13 Reported As: 2021 SHC 506 Result: N/A Judgment ORDER MUHAMMAD IQBAL KALHORO J: Petitioners, accused in reference No.13/2019, were extended a relief of pre and post arrest bail by this Court vide order dated 13.12.2019 in listed petitions. NAB not satisfied with the order challenged the same before the Honorable Supreme Court in CPLA No.1128/2019, disposed of vide order dated 17.03.2021 remanding the case back to this Court for deciding the petitions afresh in the light of guidelines laid down in the cases reported in PLD 2018 SC 40, PLD 2005 SC 364 and PLD 2019 SC 250 encompassing principles regulating grant or refusal of pre and post arrest bail to an accused. This special bench was constituted in compliance by the Honorable Chief Justice of this court vide office order dated 31.08.2091 after appointment of Honorable Mr. justice Muhammad Ali Mazhar as judge of the Honorable Supreme court who was fist assigned this bench to head. 2. The case mainly revolves around allegations against accused Agha Siraj Durani, present Speaker Sindh Assembly , for committing corruption and corrupt practices and amassing a fortune of Rs.1,721,129,871.00 through illegal means while acting as a Minister of Local Government Department, Govt. of Sindh (12.04.2008 to 20.03.2013) and in his current position as the Speaker , Sindh Assembly (30.05.2013 onwards). Other petitioners, accused in the reference, said to be his family members, associates, agents, domestic workers, gunmen, etc., are identified as Benamidar/ostensible owners of the properties actually owned and possessed by him. They have been alleged to be aiding and abetting him in the offence and are either holding assets or having been acting on
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his behalf in acquiring the assets by carrying on bank transactions at his behest. Yet there is another set of accused, Government officials, having worked with or under him, who are also accused of same allegations. A detail of moveable and immoveable properties allegedly acquired/held by Agha Siraj Durani is mentioned in the schedule attached with this order at the end (from pages 17 to 19). 3. Reference and Investigation Report show that the IO has calculated all his incom e, claimed and declared by him before relevant authorities for tax and election purpose, and has spotted a difference of Rs.1,610,669,528.00 between his assets on the paper and his belongings truly held by him and his family members. His declared income (1985 to 2018) without expenditure has been estimated as Rs.110,460,343.00 and with expenditure as RS.82,927,218.00 But his true wealth consisting of several movable and immovable properties has been computed as Rs.1,721,129,871.00. When the outlay including money spent by him and his family on travels abroad was deducted from this amount, unaccounted difference of Rs.1,610,669,528.00 between his declared income and assets and his actual income and belongings surfaced. 4. Learned defense counsel in order to impress their case for bail have submitted very lengthy arguments spread over many dates of hearing. The gist of their arguments, if showcased, however would be that the petitioners are innocent, have been falsely implicated in the case out of political rivalry; investigation is full of illegalities and irregularities; the Chairman NAB has issued warrant against the petitioners arbitrarily without any substance to justify the same; petitioner Agha Siraj Durani in his tax returns has declared all the properties; is a big Zamindar (Landlord) of the area having 3500 acres of agricultural land; has inherited a huge agricultural land from his forefathers; his agricultural income has not been counted, and if it is done would explain the gap, alleged to exist, between his declared wealth and his true assets; he was not afforded a fair chance in the investigation to put up his case and explain the income and the properties he has acquired from; his family has been implicated without an ounce of evidence against them; his family members have been given property by him; they have never held any public office and they are not alleged to have committed any offence; he has no connection with other accused or their assets and that there is absolutely no evidence collected in this regard by NAB. 5. It was further contended that evidence collected in the investigation is sketchy and does not furnish necessary details to tie the accused in a non-bailable offence; and this is why pending trial, a fresh call up notice has been issued by NAB to some of the petitioners respecting same allegations that testifies to an undeniable fact of hasty investigation earlier and filing of reference; such development has made the case against the petitioners to be one of further enquiry; there is a reasonable explanation supported by cogent accou nts behind acquiring each and every property by Agha Siraj Khan Durani but NAB has utterly failed to heed the same; that the whole investigation and filing of the reference smack of mala fide on NAB' s part and the aim is to fix the petitioners at any cost; although several properties against co-accused/petitioners have been shown in the reference but there is absolutely no evidence to evince their nexus with Agha Saraj Khan Durani; none of the seller or purchaser of the properties have been made witness to lend credence to the accusations; that scope of petition under Article 199 of the Constitution is larger than the one u/s 497 and 498 Cr.P.C and relief of bail is to be considered in the backdrop of fundamental rights of the accused enshrined in chapter 1 of Part II of the constitution. 6. Mr Dur Muhammad Shah advocate appearing for accused Tufail Ahmed Shah did not dispute allegations levelled against him in para No. 29 of the reference. He said that he was gunman of Agha Saraj Khan Durani and his wife Naheed Durani had given him cash of Rs.33,500,000.00 for getting a pay order issued from the bank. He had to oblige and then it i.e. pay order was used for purchasing the property . He had given the said statement to the IO and was being treated as a witness. But when the reference was filed he was arraigned therein. 7. Mr. Salahddin Ahmed appearing for accused Gulzar Ahmed contended that he has no concern with Agha Saraj Khan Durani. However , he has been working as a broker dealing with sale and purchase of the properties. Co- accused Shakeel Ahmed Soomro had approached him for buying certain properties; he facilitated him in this regard purely in professional manner without being aware of any story behind such dealings. Not a single penny earned through such trades ever ended up in his bank account nor such evidence has been retrieved by NAB. Besides his work as a broker , he is 33% partner in the sweets-business of Rahmat-e-Shreen having branches all over the country; that he has been earning handsomely from such business which he has declared in his tax returns
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regularly . This, he urged to explain transactions of Rs.600 million reflected in his bank account and mentioned in para No. 32 of the reference. Further clarifying the point, he iterated that this figure identifies the usual credit entries in his account and are acutely staggered over more than 5 years (2014 to 2019) and have nothing to do with the allegations of aiding and abetting accused Agha Saraj Khan Durani to acquire the alleged properties. In order to convince us about entitlement of petitioner to the relief of pre-arrest bail, he said that as per latest view of the Honorable Supreme court expressed in Civil Petitions No.3637 & 3638 of 2019, presence of element of malice on the part of complainant or prosecution is not sine qua non for extending such relief to an accused. Merits of the case are equally important and have to be examined for deciding right of accused to such relief. He then traced, by citing the case law from the year 1949 to the year 2021, history of evolvement of concept of pre arrest bail which we somehow found highly educatory . 8. To support their respective cases for bail, learned defense counsel relied upon following case law reported in PLD 2001 SC 607, PLD 2014 Sindh 28, PLD 2009 SC 507, 2009 YLR 2414, 2010 SCMR 1697 , PLD 2004 Lahore 155, 2003 SCMR 150, 2003 MLD 777 and SBLR 2007 Sindh 755, PLD 2013 SC 594 & 2011 SCMR 136 and unreported judgment dated 19.08.2020 passed in C.P. No.D-2975/2019, which we have perused and taken guidance from. 9. Learned special prosecutor NAB, DAG and IO have opposed relief of bail to the petitioners. They have submitted that NAB has not acted on account of any malice against the petitioners. But only in terms of a complaint that Agha Saraj Khan Durani had accumulated assets beyond his known sources of income the enquiry was ordered. He and his family members were called through call up notices to explain their wealth. They filed documents detailing number and value of the properties. But, when in the investigation sellers and purchasers of those properties were examined. They narrated a quite different value either paid or received by them. When it was calculated, a difference wholly incommensurate with the figure provided by accused Agha Saraj Khan Durani surfaced, which he could not justify despite opportunities given. He did not deny ownership of the properties on the one hand, and on the other utterly failed to forward a reliable explanation integrating his income with the value of the assets purchased by him. He further stated that statements of the sellers and purchasers and numerous bank officials issuing the pay orders are part of the record that provide sufficient evidence against the petitioners to believe their involvement in the offence. Per him, the documentary evidence in the shape of copies of pay orders, etc. showing that co-accused acted on his behalf and added him in purchasing and disposing of the properties has been collected, and that it has been established that they are the Benmidars and holding properties on his behalf. He then took us to relevant documents of assets of Agha Siraj Durani, his wealth statements, articles recovered from the bank lockers, statements of the witnesses, etc. to establish his and other accused' s nexus with the offence. He next stated that accused Agha Saraj Khan Durani is an influential person and if he was allowed to remain on bail, chances are high, that he would tamper with the evidence and force the witnesses into giving obliging statement in his favor . He then quoted the infamous case of fake bank account, which according to him was transferred by the Honorable Supreme Court from Karachi to Islamabad on the basis of such apprehension. They relied upon following case law to support. 2019 MLD 433, 2021 SCMR 449, 2021 SCMR 1166, 2011 YLR 2414 & 2010 SCMR 1697 , a judgment dated 16.06.202 in Civil Petitions No.3637 & 3638 of 2019, order dated 13.07.2021 in Criminal Petition No.408-L of 2021, order dated 205.2021 in C.P. No.D3295 of 2018 of this court and PLD 2021 SC 738. 10. Heard and perused. Main allegation of accumulating wealth beyond known sources of income is directed against accused Agha Siraj Khan Durani . In the investigation, his declared income (1985 to 2018) through all sources without spending has been calculated as Rs.110,460,343.00 and with outlay as RS.82,927,218.00 But true value of his wealth, movable and immovable properties held either by him or Benamidars and the proceeds found in the bank lockers belonging to him, without expenditure, has been computed as Rs.1,721,129,871.00., and a difference of Rs.1,610,669,528.00 between his declared income and assets and his actual income and belongings, after deducting outlay which includes money spent by him and his family on travels abroad. 11. Learned counsel for Agha Siraj Durani did not seriously dispute ownership of such assets, bank lockers, etc. His contention however was that the estimation made by NAB to determine value of his assets is lopsided and not
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supported by any document, his inheritance and possessions since the year 1985 have not been determined, and that his agriculture income from 3500 acres of land has not been added in the calculation. But, with respect, we find these arguments factually incorrect. Para No.4 of the reference specially alludes in addition to his other incomes from assorted sources to his agricultural income specifically . Although no evidence qua size of the land i.e.3500 acres, or income from it has been placed on record, but even if we presume any such income, the difference would still be insurmountable, and howsoever high an estimation from such income is allowed to be predicted, it is unlikely to fill up or come closer to the yawning gap (Rs.1,610,669528.00) between his declared income and holdings, and the wealth actually held by him. 12. NAB' s case to have figured out/calculated such difference in his income and assets is not based prima facie on any hypothesis. It is the result of figure of actual money disclosed by PWs viz. sellers and purchasers, in their statements u/s 161 Cr.P.C, to have either paid or received to or from Agha Siraj Durani; evaluation by the experts of value of items retrieved from the bank lockers i.e. gold, Rolex watches, foreign currency etc.; and estimation of value of properties held by his Benamidars and his family members. Copies of pay orders got issued from banks, by his servants or the officials working with him, is yet another prima facie piece of evidence against him in this respect. In rebuttal, nothing tangible has been offered to persuade us to hold that the textual and oral evidence against him is not sufficient to believe his involvement in the offense. Barring stressing over vast scope of constitutional jurisdiction of this court under Article 199 (i) (c) of the constitution, his counsel in augments offered nothing tangible to account for unaccount ed wealth Agha Siraj Durani has been prima facie found in possession of and a big house in a posh area (DHA) of Karachi in which he with his family , without an apparent title, has been residing since 201 1. 13. As to his argument highlighting alleged lacunas, irregularities or illegalities in the investigation and its prospective benefit to the accused, we may clarify that it is settled in law that if there is any illegality or irregularity in the investigation, the same would be cured after the trial court or the Magistr ate, as the case may be, takes cognizance of the offence. For favour of this view, the case of Mushtaq Hussain and another Vs. the State (2011 SCMR 45) can be referred to. In the case in hand, since the trial court has already taken cognizance of the offence, the lacuna etc. if any, in the investigation stands cured. When this is the position in law, no benefit in the shape of bail on this score, in our view, can be extended to the petitioner . In view of such outlook on the point and prima facie sufficient material connecting him with the properties, not at all denied, we do not find him entitled to concession of bail. 14. As to the argument that the Chairm an NAB has issued warrant of arrest against the petitioners arbitrarily without any substance to justify it. We may refer to a recent judgment dated 16.06.2021 in civil petitions No.3637 & 3638 of 2019 , relied upon by both the parties. The Honorable Supreme Court in para No.5 has held that Article 9 of the constitution is a cherished fundamental right of a person, which, inter alia, guarantees right to liberty , which may be curtailed "save in accordance with law." The phrase "save in accordance with law" implies that not only should the procedural requirements of the law be fully met but also its substan tive content i.e. there must be sufficient material/evidence on the record that can justify the application of such a law. Therefore, material/evidence must be sufficient enough to persuade the constitutional court to deprive an individual of his fundamental right. In the case reported in PLD 2018 SC 40 the Honorable Supreme Court has laid down that an accused can obtain post arrest bail on a tentative assessment of material if he is able to show that there are no reasonable grounds for believing that he has committed a non-bailable offence, and secondly there are sufficient grounds for further inquiry into his guilt. Meaning thereby that in presence of sufficient material/evidence and reasonable grounds to believe that an accused has committed the offence, his fundamental right to liberty enshrined in Article 9 can be curtailed and he can be taken into custody . Viewed in this backdrop, the contention in hand does not seem to be sustainable. The inference i.e. sufficient evidence either reached by the court or the Chairman NAB against an accused, in congruity with exception "except/save in accordance with law" provided under Article 9 of the constitution allowing departure from guarantee to right to liberty held out to an individual thereunder , shall warrant issuance of a warrant against him. Therefore, we do not see any illegality to extend benefit thereof to the petitioner
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in the warrant issued against him when there is sufficient evidence, underpinned by the view expressed in this order , and reasonable grounds to believe his involvement in the alleged of fence. 15. The other petitioners, shown as Benmidars, have been found affiliated with accused Agha Siraj Khan Durani in one capacity or the other as family members, servants, associates, gunmen, etc. Their association with him and active participation in buying and selling the properties at his behest is perceptible from the material available on record. Some of the properties being physically enjoyed by accused Agha Siraj Khan Durani are found still standing in their name in the record. One of them is accused Zulifiqar Ali Dehar (C.P.No.D-2236/2019), who has remaine d his private secretary when he was the Minister , Local Government Department. He got a pay order of Rs.49,728,343.00, used for buying a property by accused Agha Siraj Khan Durani, issued from a bank. He did not join investigation, despite being called upon, to put up his defense in this regard. Nor his counsel in his arguments could furnish a cogent exegesis about any source he got the money from or for what purpose he had the said pay order issued. 16. In addition, this accused has been found to have a commercial plaza built on a plot No.8-C DHA phase II. Karachi, ostensibly entered in the name of his wife Shamshad Khatoon (C.P.No.D-1851/2019), who is also an accused. She is not only shown as the declared owner of that property but has been found related to sale and purchase of at least one more expensive property in DHA Karachi involving an amount of Rs.26,500,000.00. Their counsel in arguments tried to justify the same by filing few Photostat copies of documents and stating that the she had a lucky draw twice on prize bonds that fetched her enough amount to get all those properties. But to us, this exposition seemed to be postscript. Neith er at the stage of investigation nor at the time of filing of this petition were this plea and documents presented for consideration. All the necessary details about alleged prize bonds i.e. entries made in the relevant register for purchasing or encashing them, source of finance, announcement-date of result, etc. are completely lacking. Then she herself is a government employee, a teacher , and it is incumbent upon her to declare in her tax returns not only her properties but also the source used to buy them. However , no such document has been placed on record or referred to by her counsel in the hearing to establish such claim. In absence thereof, no positive opinion in favour of these petitioners to extend them extraordinary relief of pre arrest bail can be formed. She and her husband have not only failed to account for their wealth, but by trying to conceal true ownership of the assets have actively participated in the alleged offence also. Furthermore, the plea and the documents, her counsel referred to, cons titute only defense which the petitioners can present in the trial court at the relevant time for consideration. Any inference influenced by these documents will require deeper appreciation of evidence, which admittedly we cannot undertake here. 17. Petitioner Munwar Ali (C.P.No.D-586/2020) has worked with accused Agha Siraj Khan Durani as his driver . He is found connected with at least 3, detected yet, highly expensive properties. He purchased a 500 sq. yards plot in phase-VI DHA Karachi in the year 2011, built a house, and sold it in the year 2014. He also purchased a Toyota Tundra, besides acquiring 40 acres of land in district Malir , Karachi, a very expen sive area, and deposited Rs.24 million in govt. treasury to pay fee Challa n for this purpose. His counsel did not deny in arguments that he was a driver . Yet, he strenuously defended him by claiming that one Muhammad Iqbal is the actual owner of the land and the petitioner is his servant. And to suppo rt this fact he filed affidavit of said Muhammad Iqbal that he is the owner of the land in Malir . Which we find totally implausible. No material qua his right to the land, stewardship of the petitioner to look after the land on his behalf, source of money , his application for allotment, allotment order , his possession of the land, seeking a legal remedy in the face of denial of his claim by NAB, etc. is on record. More so, the petitioner did not join the investigation to put up this claim before the IO and now, since it is not part of the prosecution case, it is but a defense which the petitioner may furnish before the trial court for consideration. Further , in regard to two properties i.e. a car and a plot admittedly having rema ined in his name, nothing was offered in arguments by the petitioner 's counsel to deny it. We therefore not only on merits but also on account of absence of any evidence to show his implication in the case is motivated by malic e, do not find him entitled to pre arrest bail. 18. Petitioner Muhammad Irfan (C.P.No.D-1559/2021) is found an ostensible owner of a bungalow in phase-V DHA Karachi estimated to be worth Rs.240 million. That he purchased in the year 2011 and since then accused
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Agha Siraj Khan Durani has been living there with his family , and he not for a single day has resided therein. No plausible explanation for such status quo has been forwarded by him in his petition. He has only pleaded that being owner of a bungalow is not an offence. But has utterly disregarded, in the wake of allegations against him, to tell the resource utilized by him to purchase such property and in what capacity he has let accused Agha Siraj Khan Durani live in his bungalow . His connection with him as his Benamidar thus is but obvious. And this position, besides highlighting the active part of petitioner Muhammad Irfan in the offence, reaffirms the case of NAB against accused Agha Siraj Khan Durani that he is the actual owner of the properties osten sibly held by his agents, cronies, etc. as Benamidars. Furthermore, he did not join the investigation to put his case before the IO. Us he tried to convince in hearing that he is the landlord and accused Agha Siraj Khan Durani is the tenant. But such claim is neither borne out of his petition nor sustained by any other material to inveigle us to agree to him. In any case, it requires deeper appreciation of evidence to find out candor of what he has argued before us. Which, admittedly we are not permitted to do in exercise of constitutional jurisdiction, and more importantly in absence of any evidence led in the trial on this issue. He may, if so advised, agitate his case before the trial court on this point for consideration. But as far as his credentials to qualify him for pre arrest bail are, as discussed above, there is prima facie sufficient evidence against him plus there is no material to show his implication by NAB in this case on account of any disingenuous motive. 19. Petitioner Shakeel Ahmed Soomro (C.P.No.D-6623/2019) is town officer of Garhi Yasin, district Shikarpur , home town of accused Agha Siraj Khan Durani. He was found engaged in buying and selling two very expensive properties in DHA Karachi. The money found to have exchanged his hands in this respect runs in myriad millions. Further he is found to have established a liaison for…
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