Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Qazi MUSHTAQ AHMED VS Respondent: CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through NAB(K) Sindh
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Yousuf Ali Sayeed Title:Qazi MUSHTAQ AHMED vs CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU
through NAB(K) Sindh Case No.: Constitutional Petition No,D-3529 of 2016 Date of Judgment:2017-07-20 Reported As: 2018 YLR 134 Result: Bail allowed. Judgment ORDER AQEEL AHMED ABBASI, J.---Through instant petition, petitioner, namely, Qazi Mushtaq Ahmed son of Qazi Nazar Muhammad, who was arrested after dismissal of his pre-arrest bail at the time of confirmation in C.P.No,D-7930/2015, has sought bail after arrest subject to furnishing surety, in Reference No,10/2015 .submitted before the Accountability Court, Hyderabad, while invoking the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. 2. Briefly, the facts as stated in the Memo of petition are that petitioner was a Land Acquisition Officer for Right Bank Outfall Drain Project Jamshoro (RBOD). The land was reportedly acquired by the Government for construction of RBOD, which project was originally known as the Main Nara Valley Drain (MNVD), which was a joint-venture between the Federal and Provincial Government. The land owners were, accordingly, paid compensation after determination of award by the Land Acquisition Officer of the Project. The inquiry vide No,1322/1W- 1/CO-B/NAB/ SINDH/2013 was initiated by the NAB Authorities against one Saleem Baloch, DDO/ADC-I/Land Acquisition Officer of RBOD-II Project Jamshoro, whereafter, authorization of investigation under section 18(c) of the National Accountability Ordinance, 1999 was issued against Sohail Adeeb Bachani and the petitioner Qazi Mushtaq Ahmed, being Land Acquisition Officers of RBOD Project District Jamshoro and others, vide letter dated 17.03.2015. 3. The petitioner was reportedly arrested on 05.11.2015 from Mehar and was remanded in NAB custody on 06.11.2015, whereafter, on completion of investigation, petitioner has been remanded in judicial custody since 17.11.2015 and has been confined in Special Prison NARA, Hyderabad in NAB Reference No,10/2015, and since then he is facing trial before the Accountability Court in the above
---
## Page 2
Reference. The allegations against the petitioner have been detailed in Paras Nos, 8 and 9 of aforesaid Reference No,10/2015, according to which, during the course of investigation, it transpired that final payment of Rs,83,100,000/- to accused No,6 Mukhtiar Ali, Accused No,7 Muslim Khan, accused No,8 Punhoon, accused. No,10 Abdul Wahid, accused No,11 Muhammad Sadiq and accused No,12 Nabi Bux were made by the petitioner Qazi Mushtaq Ahmed after taking over the charge as Land Acquisition Officer RBOD Project, Jamshoro. It has been further alleged that the petitioner being Land Acquisition Officer of RBOD Project, who without issuance of Notification under Sections 4 and 6 of Land Acquisition Act, passed the Award in respect of subject land and made payment of Rs,16,500,000/- to accused No,14, Mazhar Hussain Khaskheli, accused No,15 Tasawar Iqbal, accused No,16 Fida Hussain and accused No,17 Abdul Qayyum through payment vouchers Nos,36, 37, 38 and 39 dated 05.04.2013. According to prosecution, the total amount, which has been allegedly embezzled by the petitioner and the co-accused persons in Reference No,10/2015 has been calculated at Rs,109,300,000/-, whereas, it has been alleged that the petitioner and co-accused persons have committed offence of corruption and corrupt practices as envisaged under Section 9(a) of the National Accountability Ordinance, 1999 punishable under Section 10 of the Ordinance and Schedule thereto. 4. According to petitioner, four principal accused persons had entered into plea bargain/VR with the NAB Authorities in the following terms:-- a)SohailAdeeb Rs,25 million. Bachani b)Saleem Baluch Rs,21.87 million LAO c)BaharAli Rs,21.07 million Jummani XEN d)Niaz Chachar, Rs, 7.0 million Beneficiary It has been stated that above-named accused persons were responsible for determination of the Award for payment of land compensation and also made part payments towards compensation during relevant period of time. One of the accused person, namely, Sohail Adeeb Bachani was admitted to post arrest bail and thereafter, was allowed voluntarily return (VR) instead of plea bargain, whereas, other co-accused persons were also released after voluntarily return (VR) with the NAB, and their employments have been safeguarded. According to petitioner, the aforesaid accused persons have admitted their guilt and have made payment of about 6.8 million to the NAB, whereas, the petitioner has nothing to do with the determination of Award for compensation, who is behind the bars since his arrest and facing trial before the Accountability Court, Hyderabad. 5. Learned counsel for the petitioner has vehemently argued that petitioner is innocent, who has been falsely implicated in the aforesaid reference by the NAB authorities, whereas, petitioner has neither made determination of the value of land acquired nor has passed any Award in respect of subject land for payment of land compensation to the land owners, and has not played any active role either in acquiring the land for (RBOD) Project Jamshoro or to pass any Award and to . determine the amount of compensation, as according to learned counsel, such exercise was already undertaken by his predecessor--in-office i,e, the co-accused persons, who after having entered into plea bargain/ voluntarily return (VR), have also paid back an amount of Rs,6.8 million to the NAB authorities, whereafter, they have been released, however, the petitioner is behind the bar since his arrest on 05.11.2015 and facing trial before the Accountability Court, Hyderabad, in the aforesaid reference (i,e, Reference No,10/2015). It has been contended by the learned counsel for the petitioner that prior to filing instant petition, the petitioner had earlier sought his release on bail by filing C.P.No,D-7930/2015, which was dismissed by short order dated 29.02.2016, whereas, reasons were recorded on 10.03.2016, whereafter, petitioner assailed the said order before the Hon'ble Supreme Court of Pakistan by filing CPLA No,988/2016, however, the aforesaid petition was
---
## Page 3
dismissed vide order dated 18.04.2016 in the following terms:-- "After arguing the case at considerable length, learned counsel for the petitioner does not want to press this petition. Dismissed accordingly." 6. Learned counsel for the petitioner further contended that the reason for not pressing the aforesaid petition before the Hon'ble Supreme Court was, that while declining the bail to the petitioner in C.P. No,D-7930/2015, this Hon'ble Court was pleased to issue directions to the Accountability Court, Hyderabad, vide order dated 10.03.2016 in the following terms:-- "The Accountability Court Judge who is hearing this Reference is directed to proceed with the trial expeditiously and complete the same within three months of the date of this order and provide fortnightly progress reports to this Court through MIT II." According to learned counsel, since the aforesaid directions of this Court have not been complied with, as neither the trial has been completed within three months from the date of order passed by this Court on 10.03.2016 nor any direct evidence or material, which could establish the allegations against the petitioner, has men produced by the prosecution, therefore, petitioner has filed instant petition after a lapse of more than one year on the ground of hardship, inordinate delay in conclusion of trial, and also for non- compliance of Court's directions to conclude trial within three months, whereas, at the time of filing instant petition, even the charge could not be framed. Per learned counsel, the petitioner has fallen seriously ill while in judicial custody, and is suffering from diabetes mellitus, Hepatitis-C and has also sustained two paralysis attacks, whereas, no proper treatment has been provided to the petitioner by the jail authorities. It has been further contended by the learned counsel that petitioner's health is deteriorating in jail every day, and if he is not released on bail, his illness and above diseases will aggravate further and would be detrimental to his life. It has been further contended by the learned counsel that there is inordinate delay in conclusion of the trial, which has not been explained by prosecution, whereas, the prosecution witnesses examined so far, have not directly implicated the petitioner in the alleged crime. Per learned counsel, there are number of other witnesses yet to be examined by the prosecution, however, there is no likelihood that the trial in the aforesaid reference will be concluded in a short period of time. Learned counsel for the petitioner has also drawn the attention of this Court to the Medical Certificates and Reports in respect of the petitioner, which were placed on record through statement dated 16.06.2017, and has contended that in addition to aforesaid diseases for which, Jail Superintendent has submitted report, the petitioner is also suffering from HCV and liver cirrhosis, however, according to learned counsel, no treatment whatsoever, has been provided by the jail authorities to the petitioner in respect of said diseases, which fact can be ascertained from the report of the jail authorities called by this Court during pendency of instant petition. It has been vehemently argued by the learned counsel for the petitioner that this is a case of hardship and inordinate delay in conclusion of trial, whereas, the petitioner is suffering from serious illness, whereas, the matter requires further inquiry into the allegations against the petitioner, who has not been assigned any direct role in commission of alleged offences as detailed in Para: 8 and 9 of the Reference No,10/2015. It has been further argued by the learned counsel for the petitioner that prosecution has not been able to produce any evidence or material, which could otherwise establish without reasonable doubt, that petitioner is the beneficiary of alleged corruption in respect of (RBOD) Project Jamshoro. Moreover, according to learned counsel, directions of this Court for conclusion of the trial within three months from the date of order dated 10.03.2016, have also not been complied with, and there is no likelihood that the trial before the Accountability Court may be concluded in a short period of time. Per learned counsel, the bail to the petitioner cannot be withheld as punishment, whereas, offence is not punishable with death or life imprisonment. Per learned counsel, the petitioner is no more required for further investigation as the challan has been submitted and the documents
---
## Page 4
whatsoever have already obtained and submitted before the Accountability Court, therefore, there is no likelihood that if the petitioner is released on bail, he would tamper with the evidence. It has been prayed that the petitioner may be released on bail subject to furnishing surety. In support of his contention, learned counsel for the petitioner has placed reliance in the following case laws:-- 1.Shoaib Warsi and others v. Federation of Pakistan and others (PLD 2017 Sindh 243). 2.Atta Abbas Zaidi v. Chairman NAB and others (PLD 2017 Sindh 120) 3.Muhammad Jahangir Baqar v. The State and others (PLD 2003 SC 525) 4.Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645) 5.Unreported decision in the case of Muhammad Anwar Brohi v. Chairman, NAB, Islamabad, in C.P.No,D-11/2016. 7. Conversely, learned Special Prosecutor, NAB has opposed the grant of bail to the petitioner on the ground that petitioner has not acted with due care while issuing cheques towards compensation of land in respect of (RBOD) Project Jamshoro, and has caused loss to the exchequer. However, when the learned Special Prosecutor, NAB was inquired to assist this Court as to whether, at the relevant point of time, the petitioner was the Land Acquisition Officer in respect of (RBOD) Project, Jamshoro, or has passed any Award in respect of subject land, in response to which, learned Special Prosecutor, NAB has candidly stated that the allegation against the petitioner is that he has made payments through cheques to the land owners i,e, accused persons towards compensation in respect of land acquired for (RBOD) Project Jamshoro, without issuance of Notification under Sections 4 and 6 of the Land Acquisition Act. 8. We have heard the learned counsel for the petitioner as well as Specia Prosecutor NAB and also examined the record of the case with their assistance. Since this is second petition filed by the petitioner seeking his release on bail, it will be relevant to give the chronology of brief facts regarding fixation and hearing of instant petition before this bench. Initially, instant constitutional petition was filed at the principal seat as C.P. No,D-3616/2016 pursuant to order dated 14.06.2016 passed by the Hon'ble Chief Justice on office note put-up by the Additional Registrar (Writ) approving the hearing of the case at Principal Seat. Notices were issued to the DPG, NAB and the I.O. of the case vide order dated 20.06.2016 for 28.06.2016. On 28.06.2016, when the matter was taken up for hearing in Court, following order was passed:-- " 28. 06.2016 Mr. S. M. lqbal, Advocate for petitioner. Mr. Noor Muhammad Dayo, Special Prosecutor NAB. Learned Special Prosecutor NAB requests for time to file comments. He has also raised objection in regard to hearing of instant petition by this Bench in view of the judgment of the Honourable Supreme Court of Pakistan in the case of Nazir Ahmed and another v. The State and others, reported as PLD 2014 Supreme Court 241, as according to the learned Special Prosecutor NAB, the bail application of the petitioner was earlier dismissed by the Division Bench of this Court, comprising of Mr.Justice Ahmed Ali M. Sheikh and Mr.Justice Muhammad Karim Khan Agha. Learned counsel for the petitioner submits that in the afore-cited judgment, the Honourable Supreme Court has categorically held that if the learned Judge or one or some of the Judges dealing with and deciding the earlier application(s) was/were not available at the relevant station of posting/Principal Seat/Bench, then such matter can be heard by another Bench as per roster. Contention of learned counsel for the petitioner in view of the decision of the Honourable Supreme Court as regard to hereinabove appears to be reasonable, however, since both the learned Judges are reportedly posted at Principal Seat, however, not in the sitting presently, we deem it appropriate to refer the matter to the Honourable Chief Justice for appropriate orders under the facts and circumstances of the instant case. Learned counsel for the petitioner seeks
---
## Page 5
urgency. Office is directed to refer the matter to the Honourable Chief Justice, whereafter, in may be fixed as per roster, pursuant to the orders by the Honourable Chief Justice in the instant petition." 9. Thereafter, the matter continued to be fixed at principal seat Karachi before various benches on 27.07.2016, 06.09.2016, 20.09.2016 and finally on 29.11.2016, when following order was passed:-- "29.11.2016 Mr. S.M. Iqbal, Advocate for petitioner. Mr. Akram Javed, Special Prosecutor NAB. At the very outset, learned Special Prosecutor NAB has placed on record copy of administer order dated 25.10.2016 whereby, Hon 'ble Chief Justice was pleased and directed the office as under:- a)All the petitions, applications etc relating to Karachi which have been filed at other High Courts in Sindh (e.g. Hyderabad, Sukkur and Larkana) be transferred to Karachi. Likewise all other High Courts (including Karachi) be directed to transfer their petitions, applications etc to the appropriate High Court where in whose jurisdiction NAB has initiated the inquiry, investigation, or filed the reference. For example, if a NAB inquiry, investigation, Reference relates to Hyderabad all High Courts shall transfer any such petitions, applications etc which they have which relate to Hyderabad to the Hyderabad High Court. b)Going forward High Court should a directed to decline to entertain petitions, applications etc which do not relate to the jurisdiction of the specific NAB inquiry, investigation and/or reference. Thus, if an inquiry, investigation and/or reference relates to alleged corruption in Sukkur then any application filed at the Karachi High Court, Hyderabad High Court or Larkana High Court should not be entertained and the applicant/ petitioner should be directed to file it before the High Court at Sukkur." While learned counsel for the petitioner submits that since earlier bail application in C.P.No,D- 5180/ 2013 was heard by a bench comprising of Ahmed Ali M. Shaikh and Muhammad Karim Khan Agha, JJ. in view of above, this petition can be heard on principal seat. Since the administrative order is in field, in view of above, office is directed to place this matter before the lion'ble Chief Justice for appropriate orders." 10. Thereafter, office sent the file of instant petition to Circuit Court, Hyderabad, pursuant to order dated 01.12.2016 of the Hon'ble Chief Justice, whereby, it has been directed that all the NAB petitions, where reference has already been filed, are to be heard by the respective benches of the High Court within whose jurisdiction, such reference has been filed before the Accountability Court. Instant petition was assigned new number i,e, C.P. No,D-3529/2016 and was taken up for hearing on 18.01.2017, when Mr. Sarmad Sattar Leghari, Advocate filed his vakalatnama on behalf of the petitioner and sought time for preparation and the matter was adjourned to 31.01.2017, when it was pointed out by the learned counsel for the petitioner that inspite of specific directions of this Court as contained in order dated 20.09.2016 in the instant petition, requiring the trial Court to proceed with the matter expeditiously, and to record the evidence of material witnesses within a period of two months from the date of the order, needful has not been done, whereafter, progress, report was called from the Accountability Court, Hyderabad. On 28.02.2017, when the matter was again taken up for hearing before a bench of this Circuit Court at Hyderabad, it was pointed out by the learned counsel for the petitioner that another petition has been filed on behalf of the petitioner being C. P. No, D-3616/2016 [now numbered as C.P.No,D-3529/2016 (Hyderabad)], due to inadvertence, however, the said petition was dismissed as not pressed, and the matter was again adjourned to 05.04.2017. Record shows that the matter was finally argued by M. S.M. Iqbal, learned counsel for the petitioner and Mr. Jangoo Khan, Senior Special Prosecutor NAB and was reserved for orders on 17.04.2017 before a bench of this Court. However, before the order could be signed following order was passed by the learned bench:--
---
## Page 6
"17.04.2017 Mr. S. M. Iqbal, Advocate for petitioner. Mr. Jangu Khan, Special Prosecutor NAB. After hearing the instant Constitutional Petition it was reserved for orders in the court but before signing the orders it transpired that C.P. No, D-7930 of 2015 filed by Qazi Mushtaq Ahmed has been dismissed along with two other Constitutional Petitions by our learned brothers; Ahmed Ali M. Shaikh and Muhammad Karim Khan Agha, JJ vide order dated 10.03.2016. The petitioner Qazi Mushtaq Ahmed, thereafter approached the Honourable Supreme Court and vide order dated 18.04.2016 the Civil Petition No, 988 of 2016 was dismissed as not pressed. Propriety demands that instant Constitutional Petition may be heard by the same learned Bench. It appears that the order dated 10.03.2016 has been authored by our brother Muhammad Karim Khan Agha, J, who in the current roster is holding sitting at this circuit. Honourable Chief Justice has transferred this Constitution Petition to this Circuit vide order dated 01.12.2016 as Reference No,10 of 2015 is pending before NAB Court, Hyderabad. Therefore, D.B. comprising of Muhammad lqbal Mahar and Muhammad Karim Khan Agha, JJ shall hear the instant petition. To be fixed within 10 days. Office is directed to issue notices to the counsel for petitioner and Special Prosecutor NAB." 11. On 10.05.2017, the matter was again fixed before a bench-comprising of Mr. Muhammad Iqbal Mahar and Mr. Muhammad Karim Khan Agha, JJ. and following order was passed:-- " 10. 05 . 2017 Mr. S.M. lqbal, advocate along with Mr. Sarmad Sattar Laghari advocate for petitioner. Mr. Jangu Khan Rajput, Special Prosecutor NAB. Learned counsel for the petitioner has completed his arguments in respect of the same, however, he seeks time to file complete up to date diary sheets. He does not want a specific date but requests that this matter be fixed after four weeks. Order accordingly." 12. On 07.06.2016, when this matter was fixed before the present bench, while hearing urgent application as well as the application filed under Section 151, C.P.C. by the learned counsel for the petitioner, following order was passed:-- " 07. 06. 2017 Mr. Sarmad Sattar Laghari, Advocate for petitioner. Learned counsel for petitioner seeks urgency and has filed an application under Section 151, C. P. C. along with annexures stating that since he is not an enrolled advocate of this Court therefore, he may be granted permission to proceed with the matter. Urgency as well as permission granted. According to learned counsel, the Counsel who is representing the petitioner is stationed at Karachi and cannot appear before this Court during Ramzan. On perusal of order dated 10.05.2017, it appears that instant matter was partly heard by the Bench comprising of our learned brothers Mr. Justice Muhammad lqbal Mahar and Mr. Justice Mohammad Karim Khan Agha, who are no more in the current roster sitting, whereas, in view of the administrative order passed by the Honourable Chief Justice at Principal Seat the matters in which any of the Member of the Bench is not available such matters are not to be treated as part heard and can be heard by the Bench available under the roster. Learned counsel for the petitioner submits that since the petitioner is suffering from serious ailment hence requests that current medical report in respect of health of the petitioner may be called from the Superintendent, Special Prison Nara, Hyderabad and some short date may be given. Let current medical report with regard to ailment of petitioner Qazi Mushtaque Ahmed be called from the Superintendent, Special Prison Nara, Hyderabad and the matter be fixed after notice to
---
## Page 7
all concerned on 14.06.2017. In the meanwhile, advance copies of the documents placed today by the Counsel for petitioner shall be supplied to the learned DAG and well as Special Prosecutor NAB." 13. On 14.06.2017, when the matter was taken up for hearing, learned counsel for the petitioner has referred to the report submitted by the Superintendent, Special Prison Nara, Hyderabad, regarding medical condition of the petitioner, namely, Qazi Mushtaq Ahmed, along with its annexures and contended that from tentative perusal of the report, it appears that jail authorities have not mentioned that petitioner is suffering from Hepatitis 'C' or liver cirrhosis, and requested for time to place on record the Medical Reports of petitioner in respect of aforesaid diseases on the next date, and the matter was adjourned by consent to 20.06.2017, when it was finally argued by the learned counsel for the petitioner and the Special Prosecutor NAB. 14. The aforesaid detail has been given to appreciate as to how second petition seeking bail after arrest in respect of petitioner, namely, Qazi Mushtaq Ahmed, whose earlier petition seeking bail was already dismissed by another Divisional Bench of this Court, has been entertained by this Court, though on additional and different grounds. Perusal of the allegations as contained in Paras Nos, 8 and 9 of the Reference against the petitioner, prima-facie reflects that the petitioner has been charged of having made payments through payment vouchers to some of the accused persons towards compensation in respect of subject land i,e, (RBOD) Project Jamshoro, without issuance of Notification under Sections 4 and 6 of the Land Acquisition Act. However, there seems no direct allegation against the petitioner in the Reference, nor any evidence or material appears to have been produced by the prosecution either before the Accountability Court Hyderabad or before this Court, which could establish without reasonable doubt, that petitioner was instrumental in passing of Award in respect of aforesaid project or to determine the amount of compensation to be paid to co-accused persons in terms of Land Acquisition Act, 1894. On the contrary, it appears that petitioner has been assigned a role by the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.