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Petitioner: Roshan Ali Shaikh and others VS Respondent: Pakistan through Secretary, Ministry of Law and others
Court Name: Sindh High Court Judge(s): Amjad Ali Sahito, Zulfiqar Ali Sangi Title:Roshan Ali Shaikh and others vs Pakistan through Secretary, Ministry of Law
and others Case No.: Constitution Petitions Nos. D-4295, 4429 and 4914 of 2020 Date of Judgment:2020-11-09 Reported As: 2023 YLR 943 Result: Bail allowed Judgment ORDER AMJAD ALI SAHITO, J. By this common order, we intend to dispose of captioned Constitution Petition(s) together as the same arise out of the same Reference. The relevant facts, as set out in Reference No.27 of 2018 against Petitioners, are hereby reproduced as follows:-- ("The Petitioner(s) hereinabove referred to as in the facts being accused Nos.1, 2 and 3") 2. That allegation against Petitioner Roshan Ali Shaikh at Paragraph No.11 is that "the accused No.3 Roshan Ali. Shaikh remained posted as Executive District Officer (EDO), City District Government Karachi from 25.02.2010 to 14.02.2011, DCO, CDGK from 30.09.2011 to 09.11.2011) and Commissioner Karachi Division from 09.11.2011 to 08.10.2012 (He misused his Authority in violation of Section 24-A, Colonization of Government Lands (Amendment) Act, 2009, by misreporting to Secretary (LU) by not fully clarifying the title of land which carried already issued a lease for 30 years and encroachment on the said area) in addition to the violation of the purpose of the lease in connivance with the land mafia. Furthermore, vide letter dated 02.07.2012 accused No.3 submitted his report and has malafidely recommended to Secretary (LU) that mutation entry is as per law and there appears no lapse. All the above-mentioned facts already reported to him by AEDO Mustafa Jamal Qazi vide letter dated 01.11.2010 and same was ignored by the accused. Based on the letter dated 02.07.2012 of accused, the Secretary (LU) floated summary to the Chief Minister Sindh for seeking post-facto approval of the letter dated 29.09.2011 ("in which no objection was issued by Secretary (LU) to DCO for the deposit of balance amount and keeping entry in Record of Rights)".
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3. The allegation against Petitioner Fazul-Ur-Rehman at paragraph No. 10 is that "accused No.2 remained posted as District Coordination Officer , City District Government Karachi (CDGK) from 25.02.2010 to 31.12.2010 and as Administrator CDGK from 31.12.2010 to 18.06.2011. He being DCO CDGK/ Administrator misused his Authority as he, without considering the status of land, allotted to KMC for wool washing tanneries in 1960, made a report dated 04.11.2010 that the land was resumed in the year 1993 by LU Department without issuing notice to them and further assuming the allotment around for 30 years requested for its renewal. Further, he, being an Administrator, in the absence of Council on 20.10.2010 passed the Council Resolution No.14 allowing the KMC officials to regularize the land based on the illegal possession". 4. The allegation against Petitioner Muhammad Waseem in Paragraph No. 15 is that "accused No.7 Muhammad Waseem posted as Director Land KMC. During his tenure as Director Land KMC, misused his Authority by issuing illegal authorization letter dated 05.11.2013 and 17.04.2014 to accused No.10 Mashkoor Khan and accused No.12 Sohail Yar Khan, respectively, for the execution of illegal lease deeds in the area of Wool-Washing Tanneries and allowed the concerned Deputy Director to appear before Sub-Registrar on behalf of KMC for the execution of illegal lease on the said land based on the purported auction in the years 1971 to 1975 x 64 illegal leases were executed by the concerned Deputy Directors based on the said letter issued by the accused". 5. Mr. Makhdoom Ali Khan, advocate, representing Petitioner (Roshan Ali Shaikh) in C. P. No. D-4295 of 2020, inter alia contended that petitioner enjoys unblemished service record with good reputation in the civil Services and has falsely been implicated in a frivolous and malicious Reference; the charge against the Petitioner is groundless; allegations against the petitioner are vague; there is no likelihood of conviction of the petitioner; the order of Collector Karachi dated 31.12.1960 did not mention tenure of the allotment; the subject land was therefore not leased for 30 years; there is no evidence on the record that the subject land was not availed for its purpose; the 'subject land was never resumed; there is no resumption order available on the record; there is nothing on record to show that the BoR initiated any proceedings for resuming of the subject land; the legal opinion dated 14.03.2019 confirms that Section 24-A of the Colonization Act "is not applicable to the subject land; the subject land is not resumed under the Colonization Act; the letter dated 3I.O5.2012 and 02.07.2012, respectively, do not show any mala fide and dishonest intention on the part of the Petitioner; that Petitioner merely reiterated the title of subject land as available in the record of rights; that the petitioner issued letters on the basis of report submitted to him by the accused No.4 and the Assistant Commissioner; that petitioner was required to clarify the status of the subject land on the mala fide pretext that it was for onward transmission to the NAB authorities; the report was in fact induced, contents of which had been utilized to again Post Facto Approval through the second summary floated to the Chief Minister, Sindh; that the Reference is completely silent as to the observations made through order dated 15.02.2017 whereby the Reference filed previously had been returned and NAB was directed to reinvestigate the matter in light of, inter alia, the Suit No. 245 of 2017 under which the letter withdrawing entry in favour of KMC from the record of rights was suspended; that Transparency International Pakistan [complainant] had sent a letter to the Chairman NAB on 02.10.2019 stating that (i) NAB had failed to conduct the investigation properly by "giving clean chit to all 103 beneficiaries of the illegal/fake leases"; and (ii) Reference had been wrongly filed against the petitioner who was not even posted as the Commissioner when the entry was made in the record of rights; that entries in the record of rights are presumed to be true and strong evidence is required to rebut such presumption (Section 52 of Sindh Land Revenue Act, 1967); that there is also presumption attached as to the genuineness of documents kept under any law under, Article 92 of the Qanun-e-Shahadat Order, 1984; that the petitioner's actions are protected under Section 181 of the. Sindh Land Revenue Act, 1967, which bars any prosecution against the revenue officer for anything done in good faith; that.the letter dated
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01.11.2010 furnished by Mr. Mustafa Jamal Qazi (PW) was directed to the petitioner when he was posted as the EDO Revenue; and whereas, the petitioner was required to clarify the title of the land on 20.06.2012, as the Commissioner of Karachi; this (i) an independent task; (ii) at an interlude of over one and a half years; (iii) could only be complied with by assessment of the record of rights; that letter dated 01.11.2010 furnished by Mr.Mustafa Jamal Qazi (PW) was an attempt to legitimize the regularization already done by him and the then Administrator, Karachi, a transaction in which the Petitioner was bypassed; that three accused persons Shoukat Hussain Jokhio (accused No.4) whose report was forwarded by the Petitioner to the BoR/NAB, Saif Abbass (accused No.6) and Mohammad Shoaib (accused No.16) have been already granted bail on hardship and the fact that the Reference has been pending for more than two years and no witness out of 56 PWs have been led so far; such a trial is unlikely to conclude in near future; this is despite clear instruction from this Court to expedite the trial; that accused No.4 whose report was forwarded by the Petitioner ("with similar allegation as against the Petitioner") has been granted bail; that Nadeem Khokhar (accused No.5) (Mukhtiarkar who apprised the Deputy Commissioner (accused No.4) of the status of subject land) was granted ad-interim pre-arrest bail by the Supreme Court of Pakistan on 2I.O9.2020 after the same had been recalled by this Court; that there is no allegation with regard to the obtaining of , any financial gain by the Petitioner; that there is no cogent, reliable and collective evidence available with the prosecution to show- that the petitioner obtained any kickback or commission from anyone as the land stays in the name of government institution; that there is no allegation that Petitioner had played any role in any of the allotments with regard to the subject land; that there is, no allegation that Petitioner had played any pivotal role while entering into mutation entry in favour of KMC; that there is nothing on record which suggest any mens rea or criminal intention on the part of the Petitioner; that offence of corruption and corrupt practices within the earnings of Section 9(a) of National Accountability Ordinance, 1999, is not an offence of strict liability; that the mens rea for an offence under Section 9(a) of National Accountability Ordinance, 1999, is found in two elements first one is "conscious misuse of authority"; and second one is "illegal gain or undue benefit'. Lastly, learned counsel prayed that the petitioner may be granted post-arrest bail. Learned counsel has relied upon the case-law reported as 2005 SCMR 468 at Page 653-654-A Re.Ramesh M. Udeshi v. State; 2005 MLD 1854 at Page 1858-A(DB/SHC) Re. Ramesh M. Udeshi v. State, 2006 YLR 1468 Re.Malik Salah-Ud-Din Dollar v. The State, 2008 SCMR 1118 at 1130 Re. The State v. Idrees Ghauri; PLD 2008 SC 166 at 176B Re. Mansur-ul-Hague v. Government of Pakistan; PLD '2016 SC 276 at Page 298- - 299D Re. State v. Anwar Saif Ullah Khan, 2017 PCr.LJ 674 at 682 Para-11 (DB/IHC) Re.Muhammad lqbal v. State, 2017 PCr.LJ 854 at 917-J (SB/IHC) Re.Hamid Saeed Kazmi v. State, 2018 PCr.LJ 1607 at 1631 Para 20 (DB/SHC) Re.Abid Wali Khoso v. National Accountability Bureau 2019 PCr.LJ 582 at 591 C (DB/LHC). Re. Qamar-Ul- Islam v. National Accountability Bureau, 2020 MLD 696 at 702D and 702E (DB/BHC) Re. Umar Mukhtar v. The State, PLD 2001 Peshawar 80 at 85 D (FB) Re.Aftab Ahmed Khan Sherpa v. The State, PLD 2003 SC 46 at 56 B Re.Mir Munawar Ali Talpur v. State, PLD 2004 Karachi 224 at 231 A (DB/SHC) Re.Ramesh Udeshi v. The State, 2008 SCMR 196 at 199 A Re.Allah Nawaz A. Qazi v. State, Civil Petitions 194 of 2018 and other connected matters (SC) Re. Syed Ali Raza v. Federation of Pakistan and others, 2020 PCr.LJ 289 at 304 A (DB/LHC) Re.Hafiz Mian Muhammad Nauman v. Director General NAB, PLD 1968 SC 281 at 285 B Re.Muhammad Akbar v. State, 1982 SCMR 988 at 990-991 B Re.Abdul Haleem v. State, 2017 YLR 288 at 290 C (DB/SHC) Re. Muhammad Ashraf Khan v. Province of Sindh, 2006 SCMR 1023 at 1025 B Re.M.D Bank of Punjab v. Syed Shahzad Hussain, 2007 SCMR 330 at 336 D Re.Abdul Majeed Zafar v. Governor of the Punjab, 2007 SCMR 1451 at 1454 A Re.Asim Khan v. Zahir Shah, PLD 2010 SC 483 at 543 LL Re.Justice Khurshid Anwar Bhinder v. FOP, PLD 2010 SC 623 at 630 B Re.Ali Muhammad v. The State, 2003 YLR 1513 at 1514 B (DB/SHC) Re.Karachi Cooperative Housing Societies Union v. Government of Sindh, 2008
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PCr.LJ 967 at 970-971 B (DB/SHC) Re.Khalilullah Jan Sarhandi v. Chairman, NAB, 2019 YLR 689 at 698 C (DB/SHC) Re.Abdul Qadir Memon v. Director General, NAB, 2020 YLR 1571 at 1586 I (DB/LHC)' ' Re. Muhammad Shahbaz Sharif v. National Accountability Bureau, PLD 2008 SC 438 at 441 A Re. Muhammad Nawaz v. State, 2017 PCr.LJ 674 at 683-684 F (DB/IHC) Re. Muhammad lqbal v. State, 2018 PCr.LJ 1607 at 1631 D (DB/SHC) Re. Abid Wali Khoso v. National Accountability Bureau, 2019 PCr.LJ 582 at 593 Para 14 (DB/LHC) Re: Qamarul-Islam v. National Accountability Bureau, PLD 2020 Islamabad 177 at 183 D (DB/IHC) Re. Sheikh Imran-ul-Haque v. Federation of Pakistan 2012 YLR 2809 at 2819 E (DB/SHC) Re.Hassan Jameel Ansari v. National Accountability Bureau 2020 YLR 1370 at 1389 G (DB/LHC) Re.Muhammad Shahbaz Sharif v. National Accountability Bureau, C.P. 7714 of 2019 at Paragraph 7 (P.313 of file-Relevant at 323), PLD 2020 -SC 456 at 487, 498 DD, 500 EE, 502 FF and 505 HH Re.Salman Rafique v. NAB, 2001 SCMR 1040 at 1046 E Re.Anwar Satfullah Khan v. The State, 2015 SCMR 1575 at 1584 H Re.Rafiq Haji Usman v. Chairman, NAB, 2017 PCr.LJ 674 at 684 paragraph 16(DB/IHC) Re.Muhammad lqbal v. State, PLD 2020 Islamabad 177 at 183 paragraph 9 (DB/IHC), Re. Sheikh lmran ul Hague v. Federation of Pakistan, PLD 2020 Lahore 191 at 201 E (DB) Re.Muhammad Subtain Khan v. National Accountability Bureau, 2020 SCMR 956 at 958 D Re.Mukaram v. State, 2020 SCMR 971 at 974 D Re.Muhammad Faisal v. State, 2012 YLR 2809 at 2815 A (DB/SHC) Re.Hassan Jameel Ansari v. National Accountability Bureau, 1995 SCMR 387 at 408 I Re. Sikandar A. Karim v. State, 2020 SCMR 971 at 973B-TAB 16 Re.Muhammad Faisal v. State, Civil Petitions 194 of 2018 and other connected matters (SC), 1984 PCr.LJ 2779A (SB/LHC) Re.Shahadat All Khan v. State, 2013 PCr.LJ 487 at 490A (SB/LHC) Re.Ali Athar v. State, 2008 SCMR 1118 at 1134 0 Re. The State v. Idrees Ghauri, 1972 PCr.LJ 1130 at 1133 1134 (SB/SHC), PLD 1971 Karachi 937) Re.Jamot Ghulam Muhammad and 3 others v. State and another, 1985 PCr.LJ 596 at 598-599 (DB/ LHC) Re.Mazhar Hakeem v. The State, PLD 1993 SC 399 at 403 C-TAB 29 Re.Badaruddin v. Mehr Ahmad Raza, Crl. Accountability Appeal 68 of 2018 and other connected appeals (dated 08.10.2019) at Paragraphs 16, 17, 18 (DB/SHC)(PC). 6. Mr. Habib Ahmed, an advocate, I. representing Petitioner Fazul-Ur-Rehman in C. P. No. D - 4429 of 2020, inter alia, contended that Petitioner is innocent and has falsely been implicated in the instant case with mala fide intention and ulterior motives; that there are two allegations made in Paragraph No. 10 of the alleged Reference; that petitioner was fully competent vide Notification No. SOA(LG)4(23)2010 dated 09.04.2010; that Note Sheet dated 13.10.2010 was put up by PW Mustafa Jamal Qazi; he was given task as per Paragraphs Nos.3 and 4 of the Note Sheet for settlement of the issue between BoR and CDGK; that said PW presented Resolution No.14 dated 13.10.2010 to the bail-applicant [Petitioner] for approval; thus, said PW with math fide intention did: not mention anywhere in the Resolution that there is a dispute between CDGK KMC and BoR in respect of title of the land; the land resumed to BoR in the Year 1993, due to non-payment of the balance amount of Malkano; PW kept the petitioner in dark and got the approval of Resolution No.14 in a good faith; that according to law, mere approval of Resolution by the Council does not constitute .any rights, title to an individual or the KMC unless it is approved by the competent authority viz. Government of Sindh; that PW Mustafa Qazi himself wrote letter dated 01.11.2010 to EDO Revenue CDGK wherein disclosure of some facts has been inserted; that there are general nature allegations levelled against the petitioner without showing his specific role; that it has not been shown in any manner that the petitioner has accepted or obtained or offered from any person or offers any gratification directly or indirectly, that there is no evidence against the Petitioner where from it can even remotely be shown that the petitioner ever acquired or gave to any other person any illegal benefit; that PW-Mustafa Jamal Qazi was given task for demarcation, preparation, revised layout plan of Wool Washing Area; he held meetings with officers of BoR and the CDGK; per learned counsel the petitioner has not changed the status of land through Resolution No.14, the status of the land was changed in the Year 1993 through Resolution Nos. 87 and 88 by the then Administrator KMC; that
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there is no collective, positive, cogent and reliable evidence with the prosecution with regard that petitioner had caused any kind of loss to the government exchequer; that petitioner has nothing to do with the leases executed in favour of individuals as is apparent form the record; that subject land has resumed to Government but it was incumbent upon the KMC to utilize the land for specific purposes of Wool Washing Tanneries; that petitioner is suffering from multiple diseases, at present is unable to move and walk frequently due to ailment; petitioner is continuously visiting doctors and is permanently confined to wheelchair and the doctors at Aga Khan Hospital have advised the petitioner for lever transplantation; learned - counsel prayed' that the petitioner may be enlarged on post-arrest bail. Learned counsel has relied upon the case-law reported as 2008 SCMR 196 Re.Dr.Allah Nawaz A. Qazi v. The State, 2015 SCMR 1575 Re.Rafiq Haji Usman v. Chairman Nab and another, PLD 2003 Supreme Court 46 Re.Mir Munawar Ali Talpur v. State through Chief Commissioner, Islamabad and 2 others, PLD 2008 Supreme Court 438 Re.Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and others, 1984' PCr.LJ 2776 Re.Shahadat Khan and others v. The State, 2006 MLD 1290 Waryam v. Province of Punjab, through the Collector District, Faisalabad and another, PLD 2016 Supreme Court 276 Re., The State v. Anwar Saif Ullah Khan, 2007 SCMR 330 Re.Abdul Majeed Zafar and others v. Governor of The Punjab through Chief Secretary and others, 2005 SCMR 648 Re. Ramesh M. Udeshi v. The State, PLD 2008 Supreme Court 166 Re.Monsel-ul- Haque v_ Government of Pakistan, PLD 2001 Peshawar 80 Re.Aftab Ahmed Khan Sherpao, Ex-Chief Minister of N. W. F. P, 2008 SCMR 1118 Re. The State and others v. M.Idrees Ghauri and others. 7. Mr. Shoukat Hayat, Advocate, representing Petitioner Muhammad Waseem in C. P. No. D - 4914 of 2020, inter alias contended that Petitioner is absolutely innocent and has falsely been implicated in the instant case with mala fide intention and ulterior motives; that initially complainant Transparency International approached the , NAB for filing Reference against the KMC coupled with one hundred eighteen peoples over illegal act as alleged with regard to Plot of land comprising 245 acres; same was returned to the NAB with certain observations; that again matter was reinvestigated and NAB authorities filed the Reference; that there is crystal clear violation of the orders of Hon'ble Administrative Judge who suggested for launching of Reference against sixteen persons but NAB has arrayed series of persons as allegedly involved in the Reference pending adjudication before the Court; that prosecution has completely misled, misrepresented and distorted the true facts regarding specific role of the present Petitioner; that Deputy Director Mashkoor Khan and Sohail Yar Khan, vide Notification dated 28.07.1994, were duly authorized to execute lease deeds; that prosecution has failed to produce any single document to show with regard to the resumption of land in question by the Government of Sindh; that there is no incriminating material available on record which would - connect the present Petitioner with the commission of alleged offence; that Petitioner has never dealt with the Wool Washing Tanneries; that admittedly. 275 acres of land was allotted in Deh Garigrio and Rehri to KMC vide order dated 31.10.1960 on payment of Malkano at Rs.2500/7 per acre to the shifting of wool washing tanneries homes etc from Lyari quarters; after payment of land price, the possession was handed over to the IKMC in the Year 1969; that land in question has never been resumed by Government of Sindh or BoR, thus, it is a fit case which requires further probe into the guilt of individuals; that petitioner has never dealt with the Wool washing land since the grant of lease dated 31.12.1960; during tenure of present Petitioner as to his posting w.e.f. 05.11.2013 to 16.07.2015, .Petitioner has only referred signatures of two Deputy Directors/Nominees of KMC to execute leases vide letters dated 05.11.2013 and 17.04.2014 respectively; that finally after approval of SMB, Finance Secretary, Finance Minister, Chief Secretary and the Chief Minister, the alleged entry was recorded on the record of rights of BoR; perhaps they have never been called for recording of their statements as provided under the Law; that prosecution has never produced any iota of material in support of the claim except a
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note dated 15.01.1999 by Assistant Commissioner/ SDM Bin Qaism, Karachi, who assumed that the lease period has expired in the Year, 1993, and KMC did not pursue for renewal of the same again and it was reverted back to Government of Sindh/BoR; that land was allotted on 31.12.1960 on Malkano basis and the same has never been reverted to the BoR/Government of Sindh and prior to that no notice/order has ever been served to the KMC. The prosecution has not joined Assistant Commissioner/SDM and the Secretary Finance in investigation to clarify the issue involved in the pending lis; that prosecution has failed to call for the members of the Council who passed the Resolution and auctioned the land during the period 1972 and onwards; the subject land has been auctioned after wide publication in a daily newspapers and without any objection from any quarter; that Petitioner has not been shown as beneficiary. and causing illegal loss to the government exchequer; that Petitioner in a routine and good faith has referred the names to the Sub-Registrar as nominees. of KMC for execution of the leases; that co-accused Shaukat Hussain Jokhio and Muhammad Shoeb Saif ,Abbas have earlier been granted bail when both were in custody; that all the material is based upon documentary evidence and same is in possession of the prosecution, it would be appropriate that if Petitioner is enlarged on post-arrest bail, there is no apprehension of tampering with the prosecution evidences as well; that petitioner is suffering from agony of protracted inquiry/investigation - and the trial has not been commenced since the Year 2018; per learned counsel the Petitioner may be enlarged on post-arrest bail on merits as otherwise the principle of consistency is very much applicable in the case of present Petitioner because two co-accused have already been enlarged on post-arrest bail and the case of present Petitioner is on better footings than that of co-accused whom bail has been granted. 8. Mr. Abdul Sattar Awan, advocate, representing the National Accountability Bureau as a Special Prosecutor duly assisted by the Investigation Officer NAB has strongly opposed the grant of post- arrest bail; learned Special Prosecutor has mainly contended that this is second bail application which is not maintainable under the Law as earlier bail plea of the petitioners have been declined in toto by this Court; therefore the instant constitution petitions by which petitioners are seeking post-arrest bail is against the spirit of mandatory provisions of Law; that there is strong material available with the prosecution which would connect the present petitioners with the commission of offence; that the subject land was granted on lease basis to CDGK for about thirty years lease; which was simultaneously ended in the Year, 1993, but Petitioners never approached to the Government of Sindh for resumption of the subject land; that petitioners have deliberately and willfully put the government exchequer on losses which can be adjudged by this Court as provided under the Constitution of Islamic Republic of Pakistan, 1973; that petitioners with console aim and object have fraudulently auctioned the subject land in connivance with the department even there is nothing on record to surface with regard to the renewal upon scanning documents available with the prosecution; that petitioners have caused huge losses to the government exchequer in absentia of application of rules and regulations and did not abide by the provisions of Section 24-A of the Colonization Act; that the petitioners are not entitled for the grant of any relief which they have sought through the instant constitution petitions; that it would be determined when the trial commences that what role each of the Petitioners have played, for which prosecution is able to brought on record strong, cogent and reliable evidence; lastly, learned Special Prosecutor prayed that the instant constitution petitions filed for grant of post-arrest bail may be dismissed. Learned Special Prosecutor NAB has relied upon the case-law reported in PLD 2015 Supreme Court 41 Re. Muhammad Aslam v. The State, 2019 MLD 680 Re. Nusrat Hussain Shah v. The Chairman, National Accountability Bureau through NAB(K)/Sindh and 2018 PCr.LJ Note 10 Re. Rasool Buz Sohi v. Federation of Pakistan through Chairman NAB and another. 9. We have heard learned counsel(s) for the Petitioner(s) and learned Special Prosecutor NAB, and have gone through the material available on record.
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10. After scanning record, it has been surfaced that Petitioner(s) Roshan Ali…
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