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Petitioner: MUHAMMAD IDREES and others VS Respondent: NATIONAL ACCOUNTABILITY BUREU through Chairman Office and 2 others
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title:MUHAMMAD IDREES and others vs NATIONAL ACCOUNTABILITY BUREU
through Chairman Office and 2 others Case No.:Constitution Petitions Nos, D-3877, D-4862, D-4984, D-3854, D-3670, D- 3305, D-3320, D-3321, D-3338, D-3418, D-3468, D-3508 of 2017, D-4233, D- 5864 and D-6052, of 2016 Date of Judgment:2017-12-23 Reported As: 2019 YLR 1878 Result: Order accordingly Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---Through these petitions, some of the above named petitioners were granted ad interim pre-arrest bail by this court vide various orders in connection with inquiries/investigations being conducted against them by the National Accountability Bureau (NAB) in relation to acts of corruption and corrupt practices falling within the purview of the National Accountability Ordinance 1999 (NAO) regarding a china cutting/housing scam by workers of the KDA in connivance with other persons (beneficiaries) some of whom have also been arrested and have applied for post arrest bail, which lead to NAB filing Reference 14/2017 The State v Muhammed Nasir and others under Section 9 NAO for the petitioners' involvement in acts of corruption and corrupt practices. 2. The brief facts of the case as per reference are that the Karachi Developmen t Authority (KDA) is tasked with development within Karachi City. For that purpose KDA had reserved a number of plots in KDA Scheme 36, for amenity purposes which could not be allotted/exchanged/transferred for residen tial/commercial purposes in any manner . The officers/of ficials of KDA named in the reference however illegally/ unlawfully misused/failed to exercise their authority in allotting/transferring 23 amenity plots in Gulistan-e-Jauhar , KDA Scheme 36, Karachi by unauthorized/illegally creating 296 residential plots (China Cutting) for pecuniary benefits/illegal gains for the co-accused beneficiaries named in the reference who in connivance with the KDA officials received these plots through fake allotments, challons etc. and thereafter sold on the same to bona fide purchasers who were completely unaware of the scam thereby making huge profits for themselves and causing a huge loss to the
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Government exchequer . The details of these residential plots are set out in the reference in table form at para 2 , and in order to avoid repetition are not set out again in this order . 3. That NAB's investigation revealed that the initial allottees of these plots were either fake or denied to have applied for any allotment/transfer/ shifting of subject plots in KDA. As such these allotments are fake and fraudulent. These fake allotments and illegal transfer of files of above-referred plots by way of shifting was managed by shifting department of KDA (some of the official accused 'named in the reference) in connivance with private persons/ beneficiaries/co-accused named in the reference. In this regard, fake and illegal transfer challans were fraudulently prepared by officials of recovery department of KDA named in the reference. These carved out plots were later on clandestinely sold to the general public by private persons named in the reference (mainly brokers and estate agents) in connivance with KDA officials hence the KDA officials named in thereference along with the beneficiaries named in the reference have committed acts of corruption through their misuse of authority/failure to exercise their authority in order to benefit the beneficiaries which caused a massive loss to the Government exchequer amounting to Rs,1,439,901,714 and lead to the filing of the aforesaid reference by NAB under the NAO on 28-04-2017 which is now proceedings before an Accountability Court in Karachi. General Observations 4. We would like to make it clear that the findings in this order are only based on a tentative assessment of the material available on record and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court. 5. At the outset, as we have done before in other similar NAB cases, we observe that cases of white collar crime are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be viewed in a holistic manner and not in isolation. This is because in most cases the offence could not be committed without the active involvement of all the accused in the chain of events which lead to the commission of the offense . However , notwithstanding this observation it is settled law that in cases of bail each of the accused needs in some way to be connected with the alleged offense throug h a specific role and in the case of non bailable offenses such as this there are reasonable grounds for believing that the accused is connected with the commission of the of fense for which he is charged. 6. For offenses of corruption charged under the NAO (white collar crimes) the Hon'ble Supreme Court in the recent case of Rai Mohammed Khan v. NAB (2017 SCMR p.1152) has emphasized that the grant of bail in such cases must be construed strictly and rigidly even if, as in that case referred to above, the amount involved was on the lesser side being only approx RS 12M (as opposed to billions of Rupees through the land scam as in this case ) in the following terms at P .1154 para 7; "Under the principle of law and justice, each bail petition is to be decided on its own merits and the law applicable thereto, however , this Court cannot remain oblivious of the undeniable fact that the tendency of corruption in every field has become a threatening danger to the State economy , striking on its roots. The public money , allocated for social sector and economic well being of the poor people, is consistently embezzled/misappropriated at a large scale and why the majority of the popula tion is deprived of essential daily utilities, like pure drinking water , health care and education facilities, etc. It has become the foremost obligatio n of each and every institution, including the Judicator , to arrest this monster at this stage, before it goes out of proportion, posing threat to the very survival of the State and State economy , therefore, the Courts shall apply the Anti-Corruption laws somewhat rigidly , once in fact the case is made out, at bail stage, against the accused person . Distinction, however , is to be drawn between the ordinary criminal cases and of corruption on the above analysis and grounds, while dealing with bail matter to an accused person, charged for such like crimes and also at the time of conviction, once the case is proved against him then, Courts are not supposed to show any mercy by taking a lenient view in the matter of sentence." 7. Indeed, as in Rai Mohammed Khan's case (Supra) it is extremely tragic that in this case that land which was originally allocated for amenity purposes such as Schools, parks, playgrounds, community centers etc which aimed to benefit the local community was wiped out by the greed of the KDA officials in order to accommodate their blue eyed boys and land mafia through estate agents/brokers and other beneficiaries which is a phenomena which has
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plagued and continues to plague Karach i through such illegal activities in order to make money at the overall expense of the infrastructure of the city and well being of the inhabitants of the city. This heinous crime of usurping amenity plots and constructing residential properties through houses, apartments and skyscrapers has placed an extra burden on the infrastructure of the city in terms of electricity , water , sewage etc which the city is bursting at the seams to meet and in many areas such vital utilities and services are either rationed or not readily available to the people of the city who are left to suffer in silent but disgruntled misery with no one to turn to who can adequately , timely and efficiently address their legitimate grievances. 8. Such illegal land changes from amenity to residential or commercial purposes (which is absolutely prohibited under the law under any circumstances) also gives rise to other areas of organ ized crime such as the tanker mafia which is currently doing booming business in Karachi . Such illegal acts ultimately all lead to detrimental side effects for the inhabitants of the city which adds to their misery . No wonder the Supreme Court in its wisdom has in a recent order blocked the further construction of high rises in the city so that further damage to the infrastructure of the city can be minimized. A part from the lack of water and sewage etc. by eating up these amenity plots with housing this begs the question where will the children play with no play grounds or parks? How will local people be medically treated when the land allocated for hospitals . has been given over to the building mafia? Likewise how will children receive an education when the land allocated for the construction of schools has been given over to the building mafia? How can our environment sustain such a concrete jungle? 9. In this respect the Hon'ble Supreme Court vide order dated 27.11.2017 (unreported) in Crl.O.P . No .7 K/2017 in CrI.O.P .11 K/16 in the case of Ms. Sabiha Parveen v . Syed Nasir Abbass DG KDA held as under at Para 2. "It is also noted that the amenity lands of Karachi including present one either allotted to large number of peoples or have been allowed to be encroached including the lands situated on University Road, North Nazimabad Road, Kashmir Road etc. These are the lands meant for recreation of peoples of the area and for benefit/enjoyment of citizens of Karachi. Whatever allotments and illegal encroachments on these amenity plots, the same will be cancelled and resumed by the KDA and all boundary walls shall be demolished and report in this respect be made available before the Court on the next date of hearing" (bold added). 10. In continuation of the aforesaid order on 29-1 1-2017 the Hon'ble Supreme Court also held as under: "We observe that no substantial complia nce of this Court's order has been made in that there are thousands of encroachments in Karachi so also the illegal allotments. It is pointed out by the Senior Directo r Master Plan that there exist 35000 plots allocated at 112 sites in KDA schemes and towns hips duly noted by the Master Plan Department which were amenity plots or meant to be left open as per master plan but these plots have either been encroached upon or have been illegally allotted or occupied pursuant to forged and fictitious allotments/leases. The Direc tor General KDA states that he is going to seriously look into the matter and shall devise means by which all these 35000 plots at 112 sites of KDA scheme/townships will be got vacated and recovered and put to use for which they were originally meant in the master plan i,e, for amenity and as open space. In this respect, we expect that Government of Sindh including all the departments of local administration shall provide full assistance to the KDA for implementing the plan of vacation and recovery of all these 35000 plots at 1 12 sites of KDA schemes/townships." (bold added) 11. The above mentioned orders concerned the restoration of the illegally allotted/encroached upon amenity plots which has in effect virtually turned Karachi into a concrete jungle whilst the current NAB reference against the petitioners, for which they seek bail in this order , concerns the prosecution of some of those allegedly responsible for engaging in this illegal activity of allotting amenity plots for other purposes through the practice commonly known as china cutting. 12. The seriousness of this crime of china, cutting was recently emphasized by the Hon'ble Supreme Court, in the case of Mumtaz Ul Haq v. NAB in Civil Petition No, 609K of 2017 through its order dated 19-12-2017 (unreported ) whereby in dismissing the petitioner's leave for appeal petition against the rejection of his 265(K), Cr.P.C. application by this court in a NAB refere nce concerning china cutting the Supreme Court observed as under at para. 4 of its order:
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"4. The allegation against the petitioner in the Reference is that he in capacity as Additional Director (R-1), KDA has issued illegal allotment orders of plots of Scheme No,36, despite the fact that original allottees did not appear before him and attorney holders held only notarized GPAs which were not duly registered . The fact that the petitioner has issued illegal allotment orders and that too not to the original allottees but to the persons purporting to hold unregistered GPAs itself needs proof by way of evidence. The allegation against the petitioner apparently is of substantial nature in that the alleged plots were created on land reserved for water conduit of KW&SB and High Tension Link of K-Electric. The allotment as alleged in the Reference has been made that of amenity plots, which obviously is a serious allegation and needs proper adjudication by the Court. The High Court in the impugned order has dealt with the matter and assigned good reason for not accepting the plea of acquittal of the petitioner under Section 265-K, Cr.P.C. The petition is, therefore, dismissed and leave refused."(bold and italics added) 13. The modus operandi of this scam is a classic example of the practice otherwise known as china cutting . In this case there were a number of amenity plots which should have been used for the welfare of the people such as for parks, schools, hospitals etc as designated amenity plots can never be used for any other purpose. However in order to make money the shifting department of the KDA in connivance with the recovery department of the KDA and beneficiaries most of whom were brokers/estate agents used the following modus operandi. The shifting department illegally converted the amenity plots into plots for residential use. Thereafter in the garb of relocating fictitious people who the Government of Sindh (GOS) had allegedly purchased land from they created fictitious purchase rs who paid nothing for the plots which were carved out of the amenity plots who either did not exist, were dead, had their CNIC misused and whose name was used without their consent and knowledge. Thereafter the role of the KDA recovery department kicked in as they deliberately failed to verify the existence of such non-existing purchasers and transferred the plots into the name of the beneficiaries without payment who were mostly broke rs/estate agents who then sold on the same for lacs of rupees per plot which they split with the KDA official accused. 14. The result was that the KDA officials and beneficiaries made vast amounts of money , loss was caused to the public exchequer , and the people of the area have been deprived of parks and other recreational facilities where their children could play, "the so called lungs of the city", or a hospital, or a school etc which would have benefited the local community . 15. As the above modus operandi indicates all the accused in the reference connived together to give effect to their plan of illegal enrichment by misusing their authority /failing to exercise their authority and benefiting themselves and others. In effect it is a case of a joint criminal enterprise where each of the accused plays his role in achieving a common criminal objective which could not have been achieved without the active involvement and connivance of each of the other accused who each played his role in the criminal act the question being only whether his role in the criminal act was to a lesser or greater extent. 16. In NAB cases where land has been given away illegally to beneficiaries and the building mafia at throwaway prices it is often believed that only the big fish at the top are responsible whereas the so-called small fry such as tapedars and lower level KDA clerks as in this case bear little if any responsibility and should be excused. In our view where land is illegally given away in such circumstances this is not always the case and is largely a misconceived belief. This is because it is the so-called small fry who could have prevented the whole land scam (which often turns out to be colossal in terms of loss to the gover nment exchequer) by simply refusing illegal orders or not conniving with each other and more senior officials and the land mafia. In land scam cases no scam could be committed without the active connivance with those who are allegedly at the bottom of the chain of criminality . This is because very often it is they who have custody of the land records, change those records, or allow such records to be tampered with or illegal challans to be made or allow dummy purchasers or transferees to be inserted in documents. Thus, they are in our view equally as liable as those at the top of the chain of criminality in land scams as no land scam could be perpetuated without the active connivance of those at the lower end of the chain who have custody of the land record and move the same through their various approvals up the chain of criminality to the ultimate land mafia/ beneficiary
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who sells the land on for vast profit to an unsuspecting bona fide purchaser . In our view such plea of lack of seniority in-land Scam cases or blindly , unquestioningly following illegal orders of superiors in breach of the various rules, regulations and laws is no defense/excuse to enable an accused to escape liability . 17. In this case the chain of criminality started from the KDA shifting officers, then proceeded to the KDA recovery officers and finally to the beneficiaries/brokers/estate agents who illegally sold on the plots which had been illegally made through china cutting. The KDA shifting department, the KDA recove ry department and the estate agents/brokers all connived with each other in order to achieve this unlawful objective. 18. In considering these petitions for pre-arrest bail and post arrest bail with respect to the KDA accused we have also taken into consideration that these officials owed a particular duty of care to the citizens of Karachi to protect its precious amenity plots from china cutting, land grabbing and the land mafia so that the citizens could enjoy all the benefits of a well organized and structured city which would include parks, play grounds, schools, hospitals etc. and the fact that all the KDA officials were not novices in working in the KDA but were senior , seasoned, experienced officers who were well aware of all the relevant rules and regulations with regard to "shifting" and "recovery" and the fact that they would have known that the status of amenity plots could never be changed by themselves under any circumstances. Post and pre-arrest bail Pre-arrest bail and mala fides 19. Some petitioners have applied for post arrest bail whilst others have applied for the confirmation of their ad interim pre-arrest bail. 20. It is now well settled law that pre-arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on the part of the complainant or the investigating authority . In this regard reference may be made to the case of Rana Mohammed Arshad v. Muhammad Rafique (PLD 2009 SC 427) which was more recently reiterated by the Supreme Cour t in the case of Mukhtar Ahmad v. The State and others (2016 SCMR 2064 ). 21. None of the petitioners during oral arguments have submitted that their has been any mala fide on the part of the NAB in filing the reference against them and on examining the record we have found no material to suggest such mala fide and as such prima facie none of the petitioners are entitled to pre-arrest bail. As such the petitions for pre-arrest bail and post arrest bail can be examined together on merits based on the material before us to see whether or not there is sufficient material on record to connect the petitioner to the offense for which he has been charged in the reference. Arguments and findings on Pre arrest and Post arrest bail petitions on merits . 22. In all petitions learned Special Prosecutor NAB vehemently opposed the grant of post arrest bail and the confirmation of pre-arrest bail as the case may be. He took the court through various documents and submitted that through these documents there was more than sufficient material on record to show that the petitioners were all connected to the offense for which they had been charged in the reference and as such all petitions for post arrest bail should be dismissed and all orders granting ad interim pre-arrest bail should be recalled as the case may be. 23. W e have considered the arguments of the parties, examined the record and considered the relevant case law . KDA Shifting Department petitioners. 24. Reference to the Section 161 statements of Mohammed Jameel and Mohamed Saleem fully show the illegal shifting through china cutting and the petitioners in that department who were involved in this illegal activity . 25. Learned counsel for the petitioner's Syed Atif Hussain Naqvi and Rashid Ali who were DDO's shifting for KDA contended that they were completely innocent; that they were never posted in the area where the land scam took place; that they had not signed anything and that they had nothing to do with the plots and as such their pre-arrest bail should be confirmed. 26. Learned counsel for petitioner Irfan Khan Yousuf Zai who was also DDO shifting submitted that his case was on a better footing to the above mentioned DDO's Shifting. This was because according to him he was never posted in the shifting branch as he was in the encroachment branch and that the investigation against him was unfair and he was completely innocent and as such his pre-arrest bail should be confirmed. In support of his
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contentions he placed reliance on Tariq Bashir v. State (PLD 1995 SC 34) and Abdul Aziz Khan v. The State (PLD 2003 SC 668 ). 27. The petitioners have been given a specific role at Para 6 of the reference which reads as under: 6. "That the investigation revealed that the accused Nos, 3, 4, and 6 namely Muhammad Arif Khan, Syed Atif Hussain Naqvi, Rasheed Ali Khan and Irfan Khan Yousuf Zai all in the capac ity of DDO (Shifting) KDA also signed note sheets for illegal transfer of these residential plots on amenity areas, despite the fact that initial allotment was based upon fake and managed documents and none of the original allottees had appeared before any of them. In the same capacity , the accused Nos, 3, 4, 5 and 6 also signed transfer letters of these plots". 28. All the petitioners were DDO's in the shifting department of KDA. The contentions of the petitioners are completely belied by the Section 161 Statements of PW's Mohammed Jameel and Mohammed Saleem who implicate them in the scam and most impo rtantly the NAB has shown us numerous transfer orders which bear their signatures. They did not verify any documents and did not meet any of the original allottees who it has come on record were fictitious persons. Although they belatedly tried to deny such signatures these signatures match those on their valaknama and they have not raised this issue before the trial Court. In our view this appears to be a complete afterthought in order to escape liability . In our view there is sufficient material on record in the shape of section 161, Cr.P.C. statements of PW's and plot transfer orders duly signed by them to prima facie connect the petitioners to the offense for which they have been charged and thus their ad interi m pre-arrest bail is recalled with immediate ef fect. 29. With regard to the case of petitioner Irfan Khan Yousuf Zai we do not find his case to be on a better footing than the other DDO Shifting petitioners mentioned above and the cases he has relied upon to be of little, if any, assistance to him. The same considerati ons apply to him as to the other DDO shifting officials whose case was dealt with above. He has been given a specific role, the Section 161 stateme nts of Mohammed Jameel and Mohammed Saleem fully implicate him in the same and NAB have shown us specif ic transfer orders which bear his signature under the designation of DDO shifting which completely belie his claim that he was not in the shifting department and in the anti encroachme nt department, his signatures match those on his valakanama and his counsel frankly conceded that he has not disputed the genuineness of his signatures on the plot transfer orders before the trial court nor has he ever claimed that the investigation against him was unfair . Both these assertions appear to be mere after thoughts. Thus in our view there is sufficient material on record to prima facie connect the petitioner to the offense for which he has been charged and as such his ad interim pre-arrest bail is recalled with immediate ef fect. KDA Recovery Department petitioners . 30. Reference…
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