Case Summary & Legal Holding

This judicial decision was delivered by the KARACHI-HIGH-COURT-SINDH. The matter involves proceedings between SAJID ALI KHAN and CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB)Honorable Justice Ahmed Ali M. Shaikh, C.J. and Mohammed Karim Khan AghaM. Azam Memon,Yasir Siddiqui, officially reported as 2019 PCrLJN 4. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

2019 P Cr. L J Note 4 [Sindh] Before Ahmed Ali M. Shaikh, C.J. and Mohammed Karim Khan Agha, J SAJID ALI KHAN and others---Petitioners Versus CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB)---Respondent C.Ps. Nos. D-956, D-118, D-862, D-881, D-4128, D-738, D-334, D-335, D-336, D-222, D-223, D-119, D-121, D-896 of 2017, D-838, D-1401 and D-874 of 2016, decided on 23rd November, 2017. (a) Bail--- ----Role of accused---Scope---Each of accused needs in some way to be connected with alleged offence through a specific role---Non-bailable offence---Reasonable grounds must exist for believing that accused is connected with commission of offence for which he has been charged. (b) Criminal Procedure Code (V of 1898)--- ----S. 498--- Pre-arrest bail, grant of--- Precondition--- Pre-arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on part of complainant or police. Rana Mohammed Arshad v. Muhammad Rafique PLD 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel. (c) National Accountability Ordinance (XVIII of 1999)--- ----S. 9(a)(iv) & (b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal---Petitioners were accused facing investigation under National Accountability Ordinance, 1999---Allegations against petitioners were that they converted amenity plots into residential plots and fraudulently allotted same in names of fake and bogus persons without their knowledge---Validity---No mala fide existed on part of National Accountability Bureau and prima facie there was sufficient material on record to link the petitioners to offence for which they had been charged---Plots in question were amenity plots and under no circumstances could have been allotted for residential or commercial purposes which petitioners would have been well aware of---No material was available on record to show that any payment for plots was made or same was received by the Society---Petitioners failed to produce any such proof of payment and had also refused to surrender plots---Petitioners were beneficiaries of land scam usurping valuable and precious land of Society in connivance with their co-accused persons---Sufficient material existed on record to connect accused persons to offence for which they were charged---Bail was refused in circumstances. Anjum Aqeel Khan v. National Police Foundation 2015 SCMR 1348; Rafiq Haji Usman v. Chairman NAB 2015 SCMR 1575 and Muhammed Wasem v. Chairman NAB 2017 YLR 1528 distinguished. Rai Mohammed Khan v. NAB 2017 SCMR 1152 rel. M. Azam Memon for Petitioner (in C.P. No. D-956 of 2017). Munir Malik and Haq Nawaz Talpur for Petitioner (in C.P. No.D-838 of 2016). Javed Ahmed Rajput for Petitioner (in C.P. No. D-118 of 2017). Zia ul Haq Makhdoom for Petitioners (in C.P. No. D-1401 of 2016). Usman Tufail Shaikh for Petitioner (in C.P. No. D-862 of 2017). Haq Nawaz Talpur and Syed Jamaluddin Bukhari for Petitioner (in C.P. No. D-874 of 2016). M. Azam Memon for Petitioner (in C.P. No. D-881 of 2017). Raja Babar Hamid for Petitioner (in C.P. No. D-4128 of 2017). Javed Ahmed Rajput for Petitioner (in C.P. No. D-738 of 2017). Javed Ahmed Rajput and Abdul Rehman Thaem for Petitioners (in C.Ps. Nos. D-334, D-335, D-336, D-222, D-223 of 2017). Naveed Ahmed for Petitioners (in C.P. No. D-119 of 2017). Masroor Ahmed Alvi and Fareed Ahmed Dayo for Petitioners (in C.P. No.D-121 of 2017). Abdul Wahab Baloch for Petitioner (in C.P. No. D-896 of 2017). Yasir Siddiqui, Special Prosecutor NAB for Respondents (in all Constitutional Petitions). Dates of hearing: 19th October, 1st, 2nd, 7th, 15th and 16th November, 2017. ORDER MOHAMMAD KARIM KHAN AGHA, J.---By this common order, we intend to dispose of all the petitions seeking pre-arrest and post arrest bail filed on behalf of the petitioners as mentioned above. 2. Brief facts of the case are that on various complaints against the management of the Pak Punjab Cooperative Housing Society (the society) regarding allegation of fraudulently transferring of society's plots of original allottees to fake and bogus persons and further selling of the society's plots to the builders by fake and illegal management committee an inquiry was authorized and conducted by the NAB which was later converted into an investigation. 3. That, the investigation revealed that in the society 358 plots were allotted to original/genuine members of the society. However, Accused No.1 namely Abrar Ahmed, the then Honorary Secretary of society and Accused No.5 namely Afzal Khan a fake member of the society in connivance with each other illegally issued new share certificates and enrolled fake members, who were employees of Sindh Workers Welfare Board (SWWB). Further a fake and illegal managing committee was elected comprising fake members through elections under the supervision of Mirza Munir Baig (Accused No.6) and Mirza Afzal Baig (Accused No.7). 4. The investigation further revealed that the fake elected Managing Committee General Body illegally and malafidely approved new layout plan in which all categories of residential plots were illegally cancelled and all plots were converted into one category of 120 square yards each in order to sell/transfer the plots through fake allotment process. 5. That, during investigation it was revealed that Accused No.2 Sajid Ali Khan issued an NOC dated 22.11.2006 with regard to the lay out plan and forwarded the same to Accused No.8 Muhammad Akhter Pathan. Further Accused No.2 cancelled the allotment of old and genuine allottees and allotted 541 plots in the names of SWWB employees and others. 6. The investigation also revealed that on 22.07.2008 fake elections were conducted by the Accused No.16 Hamid Riaz Election Officer and Accused No.6 Mirza Munir Baig, the then Inspector Cooperative Department and again fake society members were elected un-opposed in which most of them were employees of SWWB. Accused No.3 Farooq Shahid became purported Secretary of the society. 7. The investigation further revealed that an inquiry was conducted by the Cooperative Department into the affairs of the society whereby the fake management of the society was held responsible for illegal cancellation of allotment of old members, illegal revision of the layout plan and showing enrollments of new and fake members in the year 2004 and 2006. Further, it was held that fake files in the names of employees were prepared and later on transferred in the name of the Accused persons in connivance with the fake elected management of the society. 8. It is also apparent from the investigation that on 08.11.2008 a fake auction of 26 x commercial plots of the society was conducted in connivance with the officers/officials of Cooperative Department. 9. That, the investigation further revealed that Abrar Ahmed (Accused No.1) the then Honorary Secretary of the society, in connivance with the Accused No.5 Afzal Khan issued fake share certificates for showing induction of fake new members in the names of employees of the SWWB and others in violation of the Bye laws of the society. The Accused No.1 further forwarded new revised layout plan in which he converted all categories of the plots and deprived the rights of the old genuine members of the society. Accused No.1 conducted fake election in connivance with deceased accused Zafar Saleem, Mirza Munir Baig (Accused No.6) and accused Sajid Ali Khan (Accused No.2) and handed over the management of the society to a fake management committee with the intention to dispose of the plots/land of the society to the builders and others. 10. That, the investigation revealed that Sajid Ali Khan (Accused No.2) in connivance with the deceased accused Zafar Saleem and Accused Nos.1, 6 and 7 became members of the fake management committee as well as purported Honorary Secretary of the society. The Accused No.2 also got approved new revised layout plan in connivance with the Accused No.8 Muhammad Akhtar Pathan depriving the rights of the old genuine members and further cancelled their memberships and allotments illegally. Further Accused No.2 in connivance with the other accused persons made fake allotments in the names of fake members and illegally transferred the fake files of allotments and leased the precious plots of the society to the Accused Nos.9, 10, 11, 12 and 13 the nominees of the Accused No.4, on the basis of fake sales agreement. 11. That, the investigation further revealed that Farooq Shahid (Accused No.3) in connivance with the Accused Nos.2, 6 and 16 got himself elected as Secretary of the society through unopposed fake elections. The accused No.3 became illegal Secretary of the society and transferred fake allotments to the Accused Nos.17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 and leased the plots of the society in their names. The Accused No.3 further conducted/managed a fake auction of the commercial plots of the society in connivance with the deceased accused Zafar Saleem and Accused No.27 as representative of Cooperative Department and leased the plots of the society in the name of Accused No.28. 12. That, it is also revealed during investigation that Accused No.4 Muhammad Riaz, the owner/partner of Messrs Falaknaz (Messrs Al-Tameer Properties) in connivance with Accused Nos.1, 2, 3, 5, 14, 15 and deceased accused Zafar Saleem usurped 100 x plots of the society on the basis of fake files of the allotments in the names of fake members and transferred/leased those plots in the names of Accused Nos.9, 10, 11, 12 and 13. Later on, the accused No.4 illegally launched a Commercial project in the name and style of Falaknaz Golden Pebbles and sold the land of the society and earned millions of rupees. 13. That, during investigation it also revealed that Afzal Khan (Accused No.5) a fake member of the society, in connivance with the Accused No.1, issued fake share certificates in the names of employees of the SWWB and others showing them as new inducted members in violation of the Bye laws of the society to ensure fake allotments of the precious land/plots of the society. The Accused No.5 further aided in the conduct of fake election with the intention to dispose off the plots/land of the society to the builders and others. 14. During investigation of the case it was found that Accused No.6 Mirza Munir Baig the then Inspector of the Cooperative Department and observer of the elections of the society aided to conduct fake elections and got elected fake management committee, which subsequently revised new layout plan and disposed off the precious land of the society to the builders and others. 15. That, it is was also found that Mirza Afzal Baig (Accused No.7) the then Election Officer aided in conduct of fake elections and got elected fake management committee, which subsequently revised new layout plan of the society and disposed of the precious land of the society to the builders and others. He also received rupees 50 million by using bank account of his nephew and further disbursed to the accused persons. 16. It is also revealed in the investigation that Muhammad Akhtar Pathan (Accused No.8) the then District Officer Cooperative, CDGK in connivance with the accused No.2 forwarded illegally new revised layout plan of the society with the knowledge of the fact that old genuine members of the society were already allotted the plots on the basis of old layout plan which deprived the legal rights of the genuine allottees of the plots of different categories. 17. It is also revealed in the investigation that Ghulam Qadir Pathan (Accused No.9), Muhammad Farooq (Accused No.10), Muhammad Younus (Accused No.11), Muhammad Anees (Accused No.12) and Wali Muhammad (Accused No.13) being nominees of the Accused No.4 aided to usurp 100 x plots of the society and further added the launch of an illegal commercial project namely Falaknaz Golden Pebbles on the land of the society. 18. That, investigation further revealed that Afaq Khan Ghori (Accused No.14) in connivance with the Accused No.2 and Accused No.15 got leased 100 plots of the society on the basis of fake special power of attorneys of the accused persons Nos.9, 10, 11, 12 and 13 in their names and aided Accused No.4 the builder to usurp the 100 plots of the society. 19. That, it is also revealed in the investigation that Khudadad Khan (Accused No.15) the then Sub-Registrar, Gulshan II in connivance with the Accused No.14 and Accused No.2 leased the 100 plots of the society on the basis of fake special power of attorneys of the Accused Nos.9, 10, 11, 12 and 13 in their names and aided the builder Accused No.4 to usurp the 100 plots of the society. 20. It is also disclosed in the investigation that Muhammad Hamid Riaz (Accused No.16) the then Election Officer aided in conduct of fake elections in the year 2008 through which a fake management committee was elected unopposed which disposed of the precious land of the society to the builders and others. 21. The investigation further revealed that Syed Amir Ali Shah (Accused No.17), Muhammad Iqbal (Accused No.18), Muhammad Ibrahim (Accused No.19), Mst. Farida (Accused No.20), Faisal Waseem (Accused No.21), Muhammad Aslam (Accused No.22), Muhammad Jawaid (Accused No.24) Muhammad Arif Siddique (Accused No.23), Muhammad Nadeem Khan (Accused No.26) and Muhammad Arif Bashir (Accused No.25) in connivance with the Accused No.3 got transferred the fake files of allotments and leased the plots of the society in their names. Later on, they as owners/partners of M/s. Marhaba Builders, launched an illegal commercial project namely Premier Regency Villas on the land/plot of the society and sold the plots to the general public and earned millions of rupees. 22. That, the investigation further revealed that Muhammad Younus Baloch (Accused No.27) as representative of Cooperative Department aided Accused No.3 and deceased Accused Zafar Saleem to conduct purported meeting of the auction committee to dispose of 26 commercial plots of the society fraudulently. 23. That, during investigation it is also revealed Adnan (Accused No.28) and Muhammad Amin (Accused No.29) in connivance with the deceased accused Zafar Saleem, Accused No.3 and Accused No.27 usurped 13 commercial plots each of the society through fake process of auction. 24. That the investigation revealed that Muhammad Amin (accused No.29) in connivance with the deceased accused Zafar Saleem, accused No.3 and accused No.27 usurped 13 commercial plots of the society through fake process of auction. 25. The investigation revealed that accused No.30 Umaid Tariq is a fake member and purported office bearer of the society, leased plots of the society to the Accused Nos.31 and 32. 26. That, the investigation revealed that Syed Fahad Ahmed (Accused No.31) Shahbaz Ahmed (Accused No.32) and Anila Aijaz (Accused No.33) usurped the plots in connivance with Accused Nos.2 and 30, the illegal office bearer of the society. 27. That, the investigation also revealed that deceased Zafar Saleem as Director SWWB in connivance with the Accused Nos.1, 2, 3, 5 and others used the names of employees of the SWWB and others for the fake new membership and allotments and transfer of allotments of the plots of society. He managed fake elections in the year 2006, and got elected fraudulently Accused No.2 Sajid Ali Khan who abetted / aided Accused No.4 Muhammad Riaz owner of Messrs Falaknaz and Accused No.20 to usurp 436 x plots of the society and launch their illegal commercial project on these plots and received cash amount from the amount of the purported sale consideration amount of 100 x plots paid by Messrs Falaknaz to the Accused No.7 through his nephew. The deceased Accused Zafar Saleem in connivance with the Accused No.3 and Accused No.27 managed the fake auction proceedings of the 26 x commercial plots of the society to dispose of these plots fraudulently. 28. Since some of the petitioners have applied for pre-arrest bail and some of the petitioners have applied for post arrest bail we shall take up the cases of pre-arrest bail first. Pre-arrest bail cases 29. Learned Counsel for petitioner Mohammed Riaz, who was the builder of the project known as Falaknaz Golden Pebbles from the illegally transferred land of the society and sold the land on to non-members for a huge profit, contended that he was completely innocent of any wrong doing and had not usurped as alleged 100 plots of land; that he had paid full market value for the land and as such had not caused any loss; that he had advertised its purchase openly and no one had come forward to claim that he had usurped the land and thus by acting in such an open manner (as opposed to secretive manner) he had no mens rea; that he was a bona fide purchaser; that he had dealt with the society whose management had been recognized by the Registrar of Co operatives under the Co-operative Societies Act, 1925; that he relied on the presumption that official acts could be relied upon under Article 129, Qanun-e-Shahadat Order, 1984; that he had not connived with anyone; that he had nothing to do with how the affairs of the society were run, its elections, its management committee etc and the mala fide of NAB was shown by including him in the reference in the first place when there was no material whatsoever to connect him to the offense for which he had been charged or the supposed land scam; he also pointed out that 3 co-accused had already been granted post arrest bail by this Court and his case was on a better footing. Namely, accused No.28 Adnan who has allegedly ursurped 13 plots, accused No.15 Khudadad Khan who was the then sub-Registrar and accused No.5 Mirza Munir Baig who was the then Assistant Registrar Co-operative Department who had allegedly supervised the bogus elections of the fake management committee of the Society. 30. Learned counsel for petitioner Afzal Khan submitted that he was legally a member of the Society; that he left the society on 06.08.2006 and thereafter had nothing further to do with the Society and as such he could not be saddled with any liability for any illegalities which had occurred after he had left the society; that all new members were inducted between 2002 and 2004 before he joined the society and as such he had nothing to do with the cancellation of the allotment of the original members and induction of the new members; that during his period nothing was done with the plots; that there was no material against him and as such this was a case of further inquiry and he was entitled to pre-arrest bail. 31. Learned counsel for petitioner Mirza Afzal Baig submitted that the petitioner was an election officer at the time of the election of the Management committee and the other election officer Mirza Munir Baig had already been granted bail vide order of this court dated 24-04-2017 and as his case was on a similar or even better footing he was entitled to bail based on the rule of consistency. With regard to the allegation that his nephew had received Rs.50 M on account of him manipulating the managing committee elections he denied that this was the case and that NAB had not been able to provide any material in support of this allegation and thus since there was no material against him this was a case of further inquiry and his was entitled to bail. 32. Learned counsel for Muhammed Farooq, Wali Mohammed, Muhammed Anees, Mohammed Younis and Afaq Khan Ghori adopted the arguments of petitioner Mohammed Riaz. 33. He further submitted that none of the petitioners were connected with the management of the society or the society in any way; that they were the relatives and nominees of petitioner Mohammed Riaz who was a bona fide purchaser of the 100 plots from the society through an agreement dated 29-09-2007 through petitioner Sajid Ali Khan on behalf of the society and the petitioner Mohammed Riaz who was the builder of Falaknaz Golden Pebbles who had allotted to them as his nominees the 100 plots. In effect the petitioner Afaq Khan Ghori been given special powers of attorney by petitioners Muhammed Farooq, Wali Mohammed, Muhammed Anees and Mohammed Younis to register the sub-leases and otherwise deal with the plots which were duly registered by accused Khudadad Khan the then sub-registrar Gulshan II Karachi who has already been granted bail vide order of this court dated 17-06-2017 where by in the bail order it had been noted by the court after checking the relevant record that the power of attorneys were not fake and since the only allegation against petitioner Afaq Khan Ghori was that he had filed fake powers of attorney he along with the other petitioners were entitled to bail as this was a case of further inquiry and the rule of consistency also applied as the case of the petitioners was on a better footing than that of Khudadad Khan who had already been granted bail by this court and as such the petitioners should be granted pre-arrest bail. 34. Learned counsel for petitioner Mohammed Hamid Riaz submitted that the petitioner was an election officer at the time of the election of the Management committee and the other election officer Mirza Munir Baig had already been granted bail vide order of this court dated 24-04-2017 and as his case was on a similar or even better footing he was entitled to bail based on the rule of consistency. 35. Learned counsel for petitioner Syed Aamir Ali Shah contended that he was a business man and was the brother in law of Zaffar Saleem (who was DG Works Sindh Workers Welfare Board (SWWB)) who had encouraged him to purchase the plots of members of SWWB as it would be a good business opportunity for him; that as such he had entered into partnership with co-accused Mohammed Iqbal through a joint venture agreement in order to construct a project to be known as Premier Regency Villa's; that he was a bona fide purchaser of the plots which he had purchased from employees of SWWB who were the lawful owner of the plots; that he had bought the plots at the market value of one lac 26,500 each being 120 sq yds; that it was a case of no evidence and under the rule of consistency he was entitled to bail as co-accused Adnan whose case was on the same footing as his had already been granted bail by this court vide order dated 24-04-2017 and as such his pre-arrest bail should be confirmed. 36. Learned counsel for petitioners Mohammed Iqbal, Mohammed Ibrahim and Mst. Fareeda Yousaf submitted that the petitioners were completely innocent; that they had nothing to do with the management or affairs of the society; that Mohammed Iqbal had entered into a Joint Venture Agreement with co-accused Syed Amir Ali Shah who owned 336 plots of the society and that he became a joint owner of these plots by virtue of the joint venture agreement for which he had paid co-accused Syed Amir Ali Shah around 3 crores and 97 lacs; that he was a professional builder and that his role in the joint venture was to build a residential project on the plots known as Premier Regency Villa's; that some of the plots were in the name of co-accused Mohammed Ibrahim (who was his brother) and Mst. Fareeda Yousaf (who was his mother) as in essence he ran a family business; that he was a bona fide purchaser and had purchased the plots at full market value; in addition in respect of co-accused Mst. Fareeda he submitted that she had severe medical issues as she had her knee caps replaced and was now wheel chair bound; that there was no material against him and since this was a case of further inquiry all the petitioners were entitled to confirmation of there pre-arrest bail. 37. Learned counsel for petitioners Faisal Waseem and Mohammed Javaid submitted that they were innocent of any wrongdoing; that they were humble employees of the Premier Group which was headed by Mohammed Arif accused No.13; that they were bona fide purchasers who had jointly bought the plots with co-accused Syed Aamir Ali Shah and in effect were benamidars of Mohammed Arif; that no specific role had been given to them in the reference and as such there pre-arrest bail should be confirmed. In support of his contentions he placed reliance on Anjum Aqeel Khan v. National Police Foundation (2015 SCMR 1348) and Rafiq Haji Usman v. Chairman NAB (2015 SCMR 1575). 38. Learned counsel for petitioner Mohammed Amin submitted that he had not usurped any plots as had been alleged; that he never participated in any auction; that he had purchased the plots from Mohammed Raffique who had purchased them at auction and thus he was a bona fide purchaser; that the real accused in respect of the auction was Mohammed Raffique who had not even been included as an accused in the reference; that his case was similar to that of co-accused Adnan who had already been granted bail by this court vide Order dated 24-04-2017 and thus based on the rule of consistency he was also entitled to bail. In support of his contentions he placed reliance on Anjum Aqeel Khan v. National Police Foundation…

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