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Petitioner: Ch. GULZAR AHMAD and anothers VS Respondent: THE STATE and anothers
Court Name: Sindh High Court Judge(s): Syed Zawwar Hussain Jaffery Title: Ch. GULZAR AHMAD and anothers vs THE STATE and anothers Case No.: Criminal Miscellaneous Application No,267 of 2001 Date of Judgment:2003-01-27 Reported As: 2004 YLR 1321 Result: Proceedings quashed
JUDGMENT
JUDGMENT ' Through this application, the applicants seek quashment of the proceedings in F.I.R. No,76 of 2000, dated 31-7-2000, in an offence under sections 409, 420, 468, 471/34, P.P.C. Registered at Police Station Anti-Corruption Establishment through its Director. The charge-sheet was placed in the Court of Special Judge Anti-Corruption (Provincial), Karachi for the purposes of the trial being Special Case No,54 of 2000. An application under section 249-A, Cr.P.C. Was moved before trial Court and same was dismissed on 24-6-2001. 2. The brief facts as per prosecution case in F.I.R. No,76 of 2000 are reproduced hereinbelow:-- "On behalf of State through Saeed A. Khan, D.S.P./Assistant Director-III, A.C.E., Karachi. ' Under sections 409, 420, 468, 471/ 34, P.P.C. Read with section 5(2), A/C Act II of 1947. ' NACLAS No,137, Deh Taiser, Taluka District West, Karachi towards North about 30/40 k.m. ' Inspector Malik Mumrez will investigate the case. ' Reportedly 1.10 billion Rs, worth Government land measuring 144 Acres situated in Naclas No,137 Deh Taiser Taluka District West, Karachi has been grabbled in connivance with Revenue Officers/ officials of Government of Sindh under the garb of poultry leases to nine different reportedly fictitious persons without verifying their credentials and following rules and procedures provided by statement of conditions laid down by the Board of Revenue, Government of Sindh. This allotment was planned by one Ch. Gulzar Ahmad who became ultimate beneficiary. On getting these leases Ch. Gulzar Ahmed managed illegal conversion of 30 years agriculture/poultry/leases to 99 years for Industrial/ Commercial/Residencial purposes through the then Chief Minister Sindh, Abdullah Shah, Fazal-urRehman the then D.C. West, Karachi, Ramesh Odeshi the then Secretary L/U, Govt. Of Sindh and others.
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' Further Ch. Gulzar Ahmad, having illegal/fraudulent conversion, became attorney of allottees and sold the same land to Messrs Dream Land, the company governed/run by Ch. Gulzar Ahmed, Ch. Nawab Ahmed his brothers and family members. ' From the above it has come on light that they in collaboration with each other committed criminal breach of trust/misconduct with common object and intention to take advantage at the cost of public exchequer. As such they caused loss of approximately one billion rupees to the Government of Sindh. ' The act of accused person namely Ch. Gulzar Ahmed, Ch. Nawab Ahmed, Abdullah Shah the then C.M. Sindh, Ramesh Odeshi the then Secretary L/U, Government of Sindh, Fazal-ur-Rehman the then D.C. West, Karachi and others for misusing their official powers/ position in connivance of each other with ulterior motive amounts to an offence under sections 409, 420, 468, 471/34, P.P.C. Read with section 5(2) of Act H A.C. Act, 1947 hence with the approval of the competent authority this case has been registered against Inspector Malik Mamrez Khan of A.C.E. Karachi will investigate. ' Provision of section 157, Cr.P.C. Is being complied. (SAEED AHMED KHAN) D.S.P. A/D III ACE, KARACHI" 3. It is contended by the learned counsel for the applicants that the applicants are peaceful law abiding citizens and carrying on their lawful trading ventures and thereby making huge contribution to National Exchequers by putting, various taxes running into millions of rupees each year. It is urged by the learned counsel that 9 alleged persons namely Altaf _Salam, Nasir Iqbal, Liaquatullah, Tariq Mushtaq, Mohsin Mushtaq, Nasim Ahmed, S.M. Naqi Kalya, Aziz Ahmed Dawa:wala and Ahsanul Haq had been granted agricultural lease for land measuring 16 acres each in the normal course of land grant policy of the Government of Sindh in the year 1978-79. Value fixed was duly paid by the grantees and they were put into possession of their respective grants which was initially for 10 years. Thereafter the purpose of grant was changed from agriculture to poultry farming and the period of land was extended from 10 years to 30 years. Again purpose of grant was altered from poultry farming to industrial/commercial/residential and the period of land was extended. Further from 30 years to 90 years by competent authority. 4. The respective grantees paid value fixed for such conversion of the use and extension of the land period whereafter gran.Tees being lawful owner of the land sold the land to the applicants for valuable consideration and made development after heavy investment. Coupled with various investment for structuring and building and amusement park, but with the change of Government they started probing into validity of the allotments/grants of land but some cases of suspected grants/allotments repeatedly referred for enquiry to the respondent No,2 by Board of Revenue, Sindh. 5. In the meanwhile, the Law Department of the Government of Sindh published a notice in Daily Dawn dated 21-10-1997 wherein it was notified that the Government of Sindh has constituted a Commission of Enquiry comprising of Additional Secretary Law, Additional Secretary Finance and Secretary Board of Revenue to probe into the validity of allotments/grans/leases/transfer of the plots to the persons/organization during the period from October, 1993 to October, 1996 with a view in making recommendation to the Government either to regularize such transactions or to cancel the same after providing opportunity of hearing to such allottees/grantees. The original allottees made their joint representation dated 4-11-1997 in writing on 4-11-1997 and also appoint an Advocate to facilitate the hearing. The matter was heard and was pending consideration and decision by the Government. It is further contended by the learned counsel that the respondent No,2 did not desist from continuing with so called enquiry and mala fide intentions and applicants under the circumstances filed Constitution Petition No,S-144 of 1998 in this Court, which was heard and decided vide order dated 18-11-1998. For the sake of convenience, order dated 18-11-1998 is reproduced as under:--
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"18-11-1998. ' Mr. K.M. Nadeem, Advocate for the petitioner. ' Mr. Choudhry Muhammad Rafiq, A.A.-G. For the State. ' Comments have been filed on behalf of respondent No,2 stating therein that the statement of the petitioner has already been recorded and, as such, presently he is no longer required for the inquiry which was being conducted by him. A verbal assurance to this effect was made by the said respondent on the last date i.e, 11-11-1998. ' Since the prayer in the petition is only in regard to directions to prohibit the respondents Nos.2 and 3 from causing harassm ent to the petitioner by summoning him time and again for obtaining information, this statement, coupled with the assurance of learned A.A.-G., satisfied Mr. K.M. Nadeem, who does not press this petition any further which is accordingly dismissed together with all pending applications. (Sd.) Majida Rizvi, Judge" 6. It is further urged by the learned counsel that the political scenario and the Government set-up was changed and the Governance of the State of Pakistan was taken over on 12-10-1999 and thereafter F.I.R. Was registered vide Crime No,76 of 2000 dated 31-7-2000 under sections 409, 420, 468, 471, 34, P.P.C. And the applicants were arrested and bail plea on behalf of the applicants was filed before learned Special Judge, Anti-Corruption (Provincial), Karachi vide order dated 15-8- 2000 and in the meanwhile Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 being (Sindh Ordinance No,1II of 2001) was promulgated by the Province of Sindh, relating to the land scam. It is further argued that the applicants prior to the promulgation of the aforesaid Sindh Ordinance No,III of 2001 extended an undertaking that they are ready and willing to pay more amount as cost of land if reasonably assessed. It is pointed out by the learned counsel that for quite sometime the charge-sheet in this case was not put up before the trial Court but the respondent No,2 was pressing the applicants to surrender the land in favour of the Government, but prosecution filed challan = in the trial Court. Where the application under section 249-A, Cr.P.C. Was moved but it was rejected on 24-62001. As the applicants for inalienable right and cannot be deprived from their liberty by circumventing the process of law and course of justice, as they have right to be treated in accordance with law as harassment is being caused by extending threats of diverting the course of prosecution/trial by abuse of law and procedure as unwarranted and violative of Articles 4, 9 and 25 of the Constitution and as much as one of the co- accused namely Fazlur Rehman, the then Deputy Commissioner has already been acquitted by the learned trial Court under section 249-A, Cr.P.C. In which the prosecutor of the said Court had conceded to the acquittal whereas the applicants are confronted with the frustration of the ends of justice as subsequent incidental transactions relating to the land in question were duly approved by the then Chief Minister of Sindh in accordance with the procedure established by the law as proper summaries were moved and same was approved. It is further urged that in consonance with the provisions of rule 7(i) and (iii) of the Sindh Government Miles of Business, all or any order passed by the Chief Minister is deemed to be the order passed by the Government and the transactions/orders passed in relation thereto having attained finality due to observance of the purpose of natural justice and keeping into the consideration the doctrine "locus poenitentiae". The propriety of the orders passed by the competent authorities cannot be questioned in quashable manner by initiating criminal transaction under the provisions of the Prevention of Corruption Act, 1947 or National Accountability Ordinance, 1999. It is further urged by the learned counsel that civil liability has been converted into criminal liability and threats are being extended for the transfer of the said case for the purpose of trial to National Accountability Court under the provisions of NAB Ordinance, 1999. It is further contended that learned D.P.G.A., NAB Sindh at Karachi has filed an
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application under section 16-A(a) of the National Accountability Ordinance in case No,76 of 2000 for transfer of the case to the National Accountability Court at . Karachi as the accused persons have committed grave act of corruption and corrupt practice as defined under section 9 of the NAB Ordinance, 1999 and the trial Court had issued notice to the applicants and the said application is pending and no orders have been passed for transfer of the case by the trial Court. It is further stated by the learned counsel for the applicants that similarly application has already been filed by the D.P.G.A., NAB Sindh with the statement. On this application, learned counsel for the applicants has also filed objections to the extent that by filing an application before this Court to transfer the said case to the NAB Court has committed contempt of Court as quashment application was presented on 17-7-2001 and preadmission notice of the application was issued to the Advocate-General, Sindh for 30-7-2001 but a statement alongwith order of the Chairman of National Accountability Bureau, Islamabad duly signed on 9-7-2001 was filed on 22-8-2002, after lapse of more than 13 months. Learned counsel for the applicants has submitted that jurisdiction of this Court under section 561-A, Cr.P.C. Has neither appellate nor alternate to original jurisdiction recognizing the inherent powers of the Court to dispense the justice being a Court of superior jurisdiction and in spite of filing. Of an application under section 16-A of the NAB Ordinance, the jurisdiction of this Court remains intact and continues so far as it is a criminal case pending in any Court of criminal jurisdiction functioning with the territorial limits of Province of Sindh in view of provisions of Articles 202 and 203 of the Constitution of Islamic Republic of Pakistan, 1973 and pendency of an application under section 16-A of the NAB Ordinance before the trial Court in no way effects continuation of proceedings pending before this Court under section 561-A, Cr.P.C. As the said case has not' been transferred and the NAB Court being Special Court under Ordinance, 1990 is subordinate to this Court the same is not excluded from the jurisdiction of this Court under section 561-A, Cr.P.C. Particularly in view of section 17(2) of the NAB Ordinance, 1999. Learned counsel on behalf of the applicants has also filed a statement on 22-1-2003 alongwith copy of letter dated 21-1-2003 and photostat copy of challan of an amount of Rs,64,80,000 deposited on 22-1-2003 as 4th and final instalment as at the time of initial grant of land measuring 144-00 acres the original allottees have paid a total sum of Rs,28,80,000 to the Government being cost subsequently after the purchase of land by the applicants the Government has alleged losses to the tune of Rs,2,59,20,000 to the Government exchequer which amount has also been deposited by the applicants in four instalments as allowed by the Secretary, Land Utilization Department. As such loss determined to have been allegedly caused to the Government exchequer in connection with grant of land has been made good by the applicants in full and no criminal offence has been committed by the applicants as the applicants had purchased land in question in the year 1994 but the original grants were made in the years 1978-79 to 1987-88. Learned counsel has also filed photostat copy of D.B. Judgment (High Court Appeal No,88 of 2001). Learned counsel submits that the prosecution of the applicants based on the F.I.R. Is mala fide and the charge is groundless and there is no probability of the accused being convicted and it will be futile that after recording of the evidence and facing of the trial by the applicants for indefinite period is abuse of authority as the trial Court while exercising the -powers under section 249-A, Cr.P.C. Has already acquitted co- accused namely Fazlur Rahman the then Deputy Commissioner. Learned counsel for the applicants in support of his arguments has relied upon the following cases:-- (1) The State v. Gulzar Muhammad and others 1998 SCMR 873 (2) Zahoor-ud-Din v. Khushi Muhammad and 6 others 1998 SCMR 1840 (3) Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122 (4) Agha Saifuddin and another v. Dr. Muhammad Ashfaq Piracha and another 1986 CLC 1819-DB (5) Agha Fakhruddin v. Muhammad Paryal and others PLD 1989 SC 16
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(6) Markazi Union Lambardaran, Punjab Province and 10 others v. Board of Revenue Punjab, Lahore and another 1997 CLC 1146 (7) Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423, 426, 447 (8) The Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Karachi 474. ' Learned counsel for the applicants has relied upon an unreported judgment of the Honourable Supreme Court of Pakistan in Civil Petition for Leave to Appeal No,597- K of 2001 and recent judgment of Honourable Supreme Court of Pakistan in Civil Petition for Leave to Appeal No,44-K of 2002. 7. Mr. Fazlur Rahman Awan, learned counsel appearing on behalf of the State has conceded for quashment of proceedings pending against the applicants in the Court of Special Judge Anti- Corruption (Provincial) at Karachi and has stated that land in question has been regularized in favour of the applicants and they have deposited the differential amount in the State Bank of Pakistan towards regularization and no amount is outstanding against the applicants and loss determined to have been allegedly caused to the Government Exchequers in connection with the grant of land had been made good by the applicants by depositing the 4th and final instalment and no useful purpose will be served by holding trial against the applicants/accused in the Court of law. Conversely, Mr. Muhammad Anwar Tariq learned D.P.G.A., NAB has vehemently opposed this application and submits that by filing the application by NAB Court in the trial Court the case stands transferred to the Accountability Court although' no orders have been passed by the trial Court and the case is there, which is to be adjudicated upon by recording evidence for commission of offence as indicated in the F.I.R. And subsequent evidence collected by the prosecution during the course of investigation. There is substance in the prosecution case which requires trial in any Court of law. 8. Learned counsel in support of his arguments has relied upon the following cases:-- (1) Raja Haq Nawaz v. Muhamtnad Afzal and others PLD 1967 SC 354 (2) Yasin Siddiqui v. The State 2001 Cr.LJ 1331. 9. I have heard the arguments of the learned counsel for the respective parties and examined the documents brought on record by the learned counsel for the respective parties and has gone through the case-law cited by them. After registration of F.I.R. Against the applicants/accused sought bail and persuade the matter before Government of Sindh through Secretary, Land Utilization Department for regularization of entire property purchased by them from Altaf Salam and 8 others and thereafter by letter dated 2-5-2002, Government' of Sindh through Secretary, Land Utilization Department has offered to the applicants to regularize the entire property measuring 144-00 acres situated at NC-137, Deh Taiser Taluka District West, Karachi for depositing diferential/additional payment of Rs,25,920,000 under the provisions of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance No,III of 2001 and amendment Ordinance No,XXXIII of 2001 promulgated by the Governor of Sindh. Under the proclamation of 14- 10-1999 and the Provisional Constitution Order No,1 of 1999 read with Provisional Constitution (Amendment) Order No,9 of 1999 and in response the applicants accepted the offer and submitted that the amount so-claimed be accepted in four equal quarterly challans and vide offer Letter No,PS/MBR/(L.U) 70/B/2002, dated 2-5-2002 is reproduced hereinbelow in extenso:-- "No, PS/MBR/(LU)/70/B/2002, GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT. Camp at Karachi dated 2-5-2002. To, Ch. Gulzar Ahmed, Executive Director, Dream Land Limited, 58-A, Lalazar M.T. Khan Road, Karachi. ' WHEREAS, it has transpired from the record that you have purchased land measuring 144-00 acres of State land from N.C. No,137 Deh Taiser, Karachi from Messrs Altaf Saleem son of Abdul Salam and
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eight others whereas conversion from poultry farming purpose to residential/industrial and commercial purpose was allowed to them under Order No,PS/MBR/ (LU)/06/1994, dated 2-1-1994, against the Occupancy Price of Rs,20,000 per acre. (2) WHEREAS, prima facie, the allotment of land has been made very much below the market price prevailing at the time of allotment i.e, Rs,2,00,000 per acre. Notwithstanding, in violation of law, rules, policy of Government and in relaxation of the ban, thus have caused wrongful loss to the Provincial Exchequer. (The ban imposed also strictly prohibited transfer/exchange of title by way of mutation, lease mortgage and registration, gift etc.). (3) AND WHEREAS, the Goverher of Sindh in exercise of powers conferred under the 'Proclamation of 14th October, 1999, and the Provisional Constitution Order No,1 of 1999 read with Provisional Constitution (Amendment) Order No,9 of 1999, promulgated the Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance No,III of 2001, and Amendment Ordinance No,XXXIII of 2001 whereby, notwithstanding anything contained in any law for the time being in force or any agreement or order of a Court, but subject to other provisions of this Ordinance, the allotments, conversions or exchanges of State land obtained or granted for residential, commercial or industrial purpose at the rates lower than the market value in violation of law or ban from 1st January, 1985 including the subsequent transaction in respect thereof, shall stand cancelled and land purchased by you has also been cancelled under section 3 of the Ordinance. (4) NOW, THEREFORE, in pursuance of the section 4(2), of the Ordinance, the loss caused to Government Exchequer has been worked out by Committee, as Rs,2,59,20,000 (Rupees Two rores Fifty Nine Lacs Twenty Thotisand only) and same is hereby offered to you for payment. In case you are agreeable to pay the same, you are to submit such acceptance to the Committee within 7 days of receipt of this letter. In case you deposit the above amount (differential amount) in lump sum then 5% discount will be allowed, as an incentive. (5) You are hereby called upon to appear within 15 days before the undersigned at 79 Block Pak. Secretariat, Karachi. For receiving challan of differential Malkano of loss caused to The Government, so that allotment order may be regularized, as per provision of section 5, of the Ordinance. In case of failure, the necessary instruction will be issued to the Executive District Officer (Revenue), for taking possession of land alongwith structure (if any) thereon. (6) The offer letter No,PS/MBR/ (LU)/61/B/1994, dated 26-3-2002 is withdrawn hence may be treated as cancelled. ' SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT (MEMBER/SECRETARY OF THE COMMITTEE) ' A copy is forwarded to the Chairman of the Committee appointed under Ordinance No,III of 2001 for information. ' SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT (MEMBER/ SECRETARY OF THE COMMITTEE) 10. In response the applicant Gulzar Ahmed by a letter dated 7-5-2002 addressed a letter to the Secretary, Land Utilization Department, Government of Sindh is reproduced hereinbelow:-- "May 7, 2002. Secretary to Government of Sindh Land Utilization Department (Member/Secretary of the Committee) Block 79, Pak. Secretariat Karachi. Sub: REGULARIZATION OF 144 ACRES LAND SITUATED AT N.C. No,137, DEH TAISER, KARACHI WEST. ' Dear Sir, ' I acknOwledge receipt of your letter under Reference No,PS/ MBR/(LU)/70/B/2002, dated 2nd instant and would like to state that though the price of Rs,200,000 per acre is still on the higher side
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as is evident from the evidences provided to you vide my letter dated 9-4-2002, even then to resolve the entire matter once for ever, I agree to your offer of Rs,200,000 per acre. ' I, further, seek your consideration keeping in view the worsening economic conditions prevailing to kindly issue four equal quarterly challans totaling Rs,25,920,000 for which I shall be highly obliged. ' My letter dated 6th instant is withdrawn hence may be treated as cancelled: ' I look forward to your cooperation and assistance. ' Yours truly Ch. Gulzar Ahmed, Director, Dreamland Limited. ' then on 10-5-2002 Major (R.) Ali Raza, Secretary, Land Utilization Department, Government of Sindh addressed a letter to applicant Gulzar Ahmed, which is reproduced hereinbelow in-exentso:-- " No .PS/MBR/(LU)442/2002, GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT, Camp at Karachi dated 10-5-2002. To, Ch. Gulzar Ahmed, Executive Director, Dream Land Limited, 58-A, Lalazar M.T. Khan Road, Karachi. SUBJECT:- OFFER LETTER OF AMOUNT Rs .2 ,59 ,20 ,000 (RUPEES TWO CRORES FIFTY NINE LACS TWENTY THOUSAND ONLY). ' Government of Sindh in Land Utilization Department has been pleased to consider and allow you to pay differential amount of Rs,2,59,20,000 (Rupees Two Crores Fifty Nine Lacs Twenty Thousand only), in four instalments as under:-- (1) 25% of the amount within one month. (2) 75% in three equated quarterly instalments. 2. In the event of default in payment of any instalment(s) 10% surcharge will be charged on defaulted instalment amount: Regularization order will only be issued after the receipt of full payment. ' Challan for Rs,64,80,00Q as first instalment is enclosed for payment. (MAJOR (RETD.) ALI RAZA) SECRETARY TO GOVERNMENT OF SINDH, LAND UTILIZATION. ' and the applicants have deposited the claim amount by four instalments and the last instalment amounting to Rs,64,80,000 was deposited on 20-1-2003. The applicants accepted the offer of the Government of Sindh and deposited the demanded amount therefore, loss of Government Exchequer has been deposited. It means that the Government of Sindh, Land Utilization Department in view of the Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 has regularized the grant as per condition laid down in clauses 4 and 5, which are reproduced…
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