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Petitioner: Syed Athar Hussain VS Respondent: Chairman NAB & another
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Shamsuddin Abbasi Title: Syed Athar Hussain vs Chairman NAB & another Case No.:(1) Const. Petition No.2262 of 2016 (2) Const. Petition No.841 of 2016 (3)
Const. Petition No.1356 of 2016 (4) Const. Petition No.3026 of 2016 Date of Judgment:2018-11-29 Reported As: 2019 YLR 788, 2018 SHC 1157 Result: Petition dismissed Judgment SHAMSUDDIN ABBASI, J:- Through CP D- 2262 of 2016 petitioner Syed Athar Hussain seeks post-arrest bail whereas petitioners Muhammad Safar , Muhammad Ejaz Chaudhry and Abdul Hameed seek pre-arrest bail through their respective petitions viz CP D- 841 of 2016, CP D- 1356 of 2016 and CP D- 3026 of 2016, in Reference No.13 of 2016 under Section 9(a) of National Accountability Ordinance, 1999 (NAO, 1999) punishable under Section 16(c) of NAO, 1999 and are on ad-interim pre-arrest bail granted to them by this Court without touching the merits of the case. 2. Precise but relevant facts as disclosed in the Reference No.13 of 2016 are that accused No.1, Dr. Asim Hussain, during his tenure as Minister for Petroleum and Natural Resources, Gover nment of Pakistan and Chief Trustee/Chancellor of Ziauddin Hospital Trust from 2008-2013 gained illegal benefits in terms of illegal allotment of State lands, besides he raised illegal encroachment on KDA land for his commercial activities and involved in laundering of proceeds of crime (illegal gains) abroad and within Pakistan by misusing his authority , thereby deprived State of Rs.462.5 billion from 2010 to 2013. During investigation it was also revealed that Dr. Asim Hussain {accused No.1} registered a Trust in the name and style "Dr. Ziauddin Ahmed Trust" in the year 1981, objective of which was charitable but he never adhered to it. In the year 1987 the Income Tax Tribunal decided the status of Trust as non-charitable, however , it was never used for charitable purposes and in reality it was used for commercial activity in the guise of trust in clear violation of the terms and conditions of the registered trust deed and provisions of Trust Act, 1882. He used the trust as a vehicle for manipulation, money laundering, accumulation of wealth and assets as well earning reputation in the society and got allotted various lands from Government fraudulently in the garb of noble cause. 3. The accused No.2, Abdul Hameed (petitioner in CP D- 3026 of 2016) during his posting as Group Finance Advisor , Ziauddin Group of Hospital and University had facilitated Dr. Asim Hussain {accused No.1} into illegal
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conversion, placement and integration of illegal money and then converted the same into assets abroad and in Pakistan by way of money laundering. He had been receiving cash from Dr. Asim Hussain {accused No.1} and placing the same into his own bank accounts and subsequently layering the same into other accounts, withdrew the same intermittently for purchase of property and used to make payment through pay orders/demand drafts etc. in respect of various persons for investment in Pakistan and abroad on behalf of Dr. Asim Hussain {accused No.1} and once the transaction was over he used to intimate through coded conversation to Dr. Asim Hussain {accused No.1} about placement and layering of money , which constitutes "money laundering ". 4. The accused No.3 Syed Athar Hussain (petitioner in CP D- 2262 of 2016) and accused No.4, Masood Haider Jaffery {absconder} while their postings as Directors Land, KDA, allotted illegal lease of KDA land, measuring 2 acres at North Nazimabad and 2.8 acres at Clifton, Karachi, by missing their authority . 5. The accused No.5 Muhammad Ejaz Chaudhry (petitioner in CP D- 1356 of 2016) during his posting as Secretary Petroleum and Natural Resources, Government of Pakistan, facilitated Dr. Asim Hussain {accused No.1} in the name of load management and moved summaries for gas curtailment to fertilizer companies without considering the rational approach and implementing the decision of ECC taken in June 2001, whereby fertilizer companies were to be provided 80% of gas supply . 6. The accused No.6, Muhammad Safdar (petitioner in CP D- 841 of 2016) while he was CEO, Karachi Dock Labour Board {KDLB} given illegal extension and award of KDLB contract in violation of PPRA Rules and facilitated Dr. Asim Hussain {accused No.1} in taking over of hospital and misusing it for private practices and referral facility , he also allowed Dr. Asim Hussain {accused No.1} to use KDLB premises for nursi ng accommodation and after his retirement from KDLB he was appointed as GM HR in Ziauddin Hospital. 7. On appraisal of material collected during investigation, it was established that accused No.1 to 6 in connivance with each other have committed land fraud amounting to Rs.9.5 billion, money laundering to the tune of Rs.3 billion, misuse of authority and criminal breach of trust through fertilizer scam worth Rs.450 billion, hence liable to be prosecuted for offence of corruption and corrupt practices as envisaged under Section 9(a) punishable under Section 10 of NAO, 1999 read with sched ule thereto and Section 3 and 4 of the Anti-Money Laundering Act, 2010, hence this reference. 8. We have noticed that NAB has arraigned different accused with different allegations and role in a one and same reference having no nexus with each other except that Dr. Asim Hussain {accused No.1} is common and has been involved in all allegations who is alleged to have committed different offences but NAB has accumulated all offences in a single reference. In order to substantiate each allegation against each accused in connivance with Dr. Asim Hussain {accused No.1}, we deem it appropriate to discuss allegation and role of each accused separately . Petitioner Syed Athar Hussain {CP D - 2262 of 2016} 9. Through his petition, petitioner Syed Athar Hussain seeks post arrest bail. The allegation against him is that while his posting as Director Land, KDA, Karachi, he extended favour to Dr. Asim Hussain {accused No.1} and granted him illegal lease of KDA land reserved for amenity by misusing his authority . 10. It is contended on behalf of petitioner that he has been falsely implicated in the case with malafide intention and ulterior motives as otherwise he has nothing to do with the allegations leveled against him in the reference; that the petitioner has unblemished and meritorious service record and after his retirement he joined Sir Syed University of Engineering & Technology as Deputy Registrar; that the allegations with regard to allotment of land in favour of Dr. Asim Hussain {accused No.1} at North Nazimabad and Clifton are false, baseless and without any documentary evidence inasmuch as the petitioner neith er had any authority of granting lease of KDA land nor he ever granted any such lease in favour of accused No.1; that Plot No.ST -4, measuring 2.8 acres , Scheme No.5, Block-6, Clifton, Karachi, was allotted to Dr. Ziauddin Ahmed Trust by the then Chief Minister , Sindh and the decision was conveyed to the Director General, KDA, by Mr. Kamran Dost, Deputy Secretary for Secretary to the Government of Sindh vide letter dated 11.04.1994 whereas Plots No.ST -8/1-a and ST-8/1-b, measuring 908 and 1347 square yards respectively , Scheme No.2, Block-F , North Nazimabad, Karachi, was not the KDA land, therefore, question of allotment by KDA does not arise; that at the time of allotment of subject lands the petitioner was not the Director of KDA; that the allotments in favour of accused No.1 were made on 28.04.1994 and the same were cancelled on
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17.07.1997 and such a decision was challenged before a competent authority i.e. Justice (R) Abdul Rehman, Chairman, Sindh Government Lands Committee, who recommended restoration of both plots in favouor of accused No.1 vide letter dated 24.12.2002 and based on such recommendation the Director General, KDA, restored the allotment of both plots in favour of accused No.1 subject to payment of dues in favour of KDA vide letter dated 06.01.2003; that no liability as to the involvement of the petitioner could be pinned down in absence of any documentary proof and yet 14 witnesses have been examined by the prosecution but none of them have uttered a single word with regard to the allegations leveled against the petitioner in the reference; that the petitioner is in continuous custody since 07.04.2016 which is more than two years but his trial has not been concluded so much so there is no likelihood of the trial being completed in near future as such the petitioner deserves concession of bail on merits as well on the ground of hardships. In support of his contentions, the learned counsel for the petitioner has placed reliance on the cases of Imtiaz Ahmed v The State through Special Prosecutor, ANF {2017 SCMR 1194, Himesh Khan v The National Accountability Bureau (NAB), Lahore & others {2015 SCMR 1092}, Zulfiqar Ashraf v The State & others {2016 SCMR 18}, Atta Abbas Zaidi v Chairman, National Accountability Bureau (NAB) and 2 others {PLD 2017 Sindh 120}, Anwar Saifullah Khan v The State and 3 others {2001 SCMR 1040}, Nazir Hussain v Ziaul Haq and others {1983 SCMR 72}, unreported order of this Court dated 12.10.2017 in CP No.D- 5369 of 2017, unreported order of this Court dated 17.04.2017 in CP No.D- 6307 of 2016 & other connected petitions and unreported order of this Court dated 01.06.2018 in CP No.D- 265 of 2015 & other connected petitions. 11. The learned Special Prosecutor NAB, on the other hand, has contended that petitioner Syed Athar Hussain and co-accused Masood Haider Jaffery while serving as Directors {Land} misused their authority and granted illegal lease of KDA lands, measuring 2 acres, at North Nazimabad, and 2.8 acres at Clifton, Karachi, in favour of Dr. Asim Hussain {accused No.1} and in this context NAB during investigation collected sufficient documentary evidence coupled with ocular evidence in shape of statements under Section 161, Cr.P.C. of witnesses, which substantiated the allegations leveled against Dr. Asim Hussain {accused No.1}, who with connivance of other accused committed offence of corruption and corrupt practices under Section 9(a) and 10 of NAO, 1999. 12. Record reflects that in 1994 two plots were allotted to M/s Dr. Ziauddin Memorial Hospital Trust viz Plot No.ST - 4/B, measuring 11430 square yards (2.80 acres), Scheme No.5, Block-6, Clifton, Karachi, and Plots No.ST -8/1-a and ST-8/1-b, measuring 908 and 1347 square yards respectively , Scheme No.2, Block-F , North Nazimabad, Karachi, for the construction of trauma centre and general hospital but the same were cancelled in year 1997. The matter was adjudicated before this Court by way of filing C.P. No.D- 1458 of 1997. During pendency of the petition, the Director General, KDA, passed a speaking order on 29.12.2001, which was reproduced in this Court, operative para whereof is reproduced below:- "4. However , since the petitioner has already constructed a hospital building on the said plot in which a hospital is operating, I am of the considered view that under the circumstances and to meet the ends of equity and justice the case of the petitioner for allotment of the said plot be accepted subject to clearance from the Government/agencies. 5. In view of the above position the case of the petitioner is considered through this Speaking Order subject to nomination of a KDA Member in their Governing Body and payment of dues if any". A committee was constituted by the Government of Sindh to examine the legality of all allotments made by the Government under the chairmanship of Justice (R) Abdul Rehman. The committee has also examined the case of allotment of M/s Dr. Ziauddin Memorial Hospital Trust and recommended withd rawal of cancellation order and restoration of allotment and such orders of Chairman were conveyed to M/s Dr. Ziauddin Memorial Hospital Trust vide letter dated 06.01.2003, which is reproduced below:- "In pursuance of Local Government Department, Govt. of Sindh letter No.SO(Land)/HTP/6-195/93 dated 26.12.2002, I am directed to intimate that the Competent Authority has been pleased to restore the amenity plots viz ST-8/1-a & ST-8/1-b, Block-F, measuring 908 & 1346 sq. yds. Scheme No.2 (North Nazimabad) & Plot No.ST-4/B, Block-6, measuring 11430 sq. yds., Scheme No.5 (Clifton) in favour of Dr. Ziauddin Ahmed Trust as per
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recommendations of Justice (R) Abdur Rehman, Chairman Sindh Govt. Lands Committee vide letter No.PS - CH/SGLG/424/02 dated 24.12.2002. The cancellation letters issued earlier vide No.350 & 361 dated 17.07.1997 are withdrawn and both plots are hereby restored. The KDA restored both plots in favour of M/s Ziauddin Memorial Hospital Trust and Dr. Asim Hussain {accused No.1} applied for execution of lease in writing and then KDA entered into a lease agreement with Dr. Asim Hussain {accused No.1}. 13. We have noticed that during investigation, I.O. of the case sorted-out the lands allotted to Dr. Asim Hussain {accused No.1} by the Land Utilization Department, Government of Sindh besides subject matter of lands situated at North Nazimabad and Clifton, Karachi, details whereof are as under:- v) Land in NC-54 Deh Jam Chakro, Karachi admeasuring 4 acres; vi) Land in Sector 52/A, NC-97 Deh Bitti Amri, Karachi, admeasuring 2 acres; vii) Land in NC-24 Deh Dih Karachi, admeasuring 4 acres; viii) Land in NC-108 Deh Chuliar for Ziauddin Medical University , admeasuring 25 acres; (ix) Land in NC-24, Deh Dih for Educational purpose, admeasuring 15 acres; x) Land in NC No.24, Deh Dih District Malir for Industrial purpose, admeasuring 10 acres; and xi) Land in Educational City Deh Chanhar, admeasuring 24.26 acres. 14. We have also examined the point of malafide against prosecution. We are of the view that there seems to be a case of pick and choose as I.O. has not arraigned any official as accused who allotted amenity plots to Dr. Asim Hussain {accused No.1} in the year 1994 or those who restored the allotment. It is surprising rather astonishing that more than 84 acres valuable lands at different parts of Karachi were allotted to Dr. Asim Hussain {accused No.1} by the Land Utilization Department, Government of Sindh but none from those who allotted these valuable lands to Dr. Asim Hussain {accused No.1} has been arraigned as accused in the reference, which clearly manifests malafide on the part of prosecution. 15. From tentative assessment of the record, we are of the view that neither the plots in question were allotted by the petitioner to Dr. Asim Hussain {accused No.1} in 1994 nor he was competent authority to restore the same after cancellation. Even I.O. has not denied during arguments that accused Masood Haider Jaffery {absconder} was Director, KDA, who entered into lease agreement with Dr. Asim Hussain {accused No.1} and at that relevant time petitioner was Additional Director, KDA. At the most NAB has leveled allegation against the petitioner that he had put his note on note sheet for entering into a deed of lease with M/s Ziauddin Memorial Hospital Trust which too was executed after approval of competent authority for restoration of earlier allotments. In the mentioned circumstances, we are of the considered view that the case of the petitioner falls within the purview of further inquiry. He is, therefore, admitted to bail subject to his furnishing surety in the sum of Rs.1,000,000/- {Rupees one million} and P.R. Bond in the like amount to the satisfaction of the trial Court. Petitioner Muhammad Safdar {CP D - 841 of 2016} 16. Petitioner Muhammad Safdar seeks pre-arrest bail and is on ad-interim pre-arrest bail granted to him by this Court without touching the merits of the case. The allegation against him is that he in his capacity as CEO, KDLB given illegal extension and award of KDLB contract in violation of PPRA Rules and facilitated accused No.1 in taking over of hospital of KDLB and misusing it for private practices and referral facility. He also allowed Dr. Asim Hussain {accused No.1} to use KDLB premises for nursing accommodation and after his retirement from KDLB he was benefited by Dr. Asim Hussain {accused No.1} by way of appointment as GM HR in his Hospital. 17. Learned counsel for petitioner Muhammad Safdar has contended that after receiving call up notices the petitioner surrendered himself before this Court for seeking pre-arrest bail and is on ad-interim pre-arrest bail granted by this Court without touching the merits of the case and he never mis-used such extra ordinary concession; that the petitioner has been falsely implicated in this case with malafide intention and ulterior motives; that he was Secretary to KDLB and there was no post of Chief Executive Officer {CEO) in the entire set- up of Karachi Dock Labour Board {KDLB}; the entire Organizational/Administrative Setup of KDLB provided in Karachi Dock Workers (Regulation of Employment) Scheme, 1973, promulgated under the Ordinance, 1973,
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inter-alia, Act of 1974, to regulate the employment of dockworkers, even then trial Court framed charge showing the petitioner as CEO of KDLB; that neither the petitioner was holding any key post nor he had the authority to take decision; that all agreements between KDLB and M/s Ziauddin Trust were signed by the competent authority and were in accordance with law; that the function, power and role of Chairman has been defined in law; that the Board has terminated the agreement in respect of KDLB hospital with Dr. Asim Hussain {accused No.1} and such a decision was challenged by him in a suit seeking declaration and injunction against KDLB before this Court. He has drawn our attention to the minutes of meeting of KDLB Hospital Management Committee, headed by Rear Admiral (R) Akbar H. Khan as Chairman wherein the proposal with regard to handing over KDLB hospital building to M/s Dr. Ziauddin Hospital was approved; that there is clear malafide on the part of NAB for non-joining the authority which had taken the decisions and they have not been shown as accused in the reference. The petitioner has never misused the concession of bail; the investigation has been completed and the reference has been filed in Court; the case of the prosecution rests upon documentary evidence and question of tampering with the prosecution evidence does not arise, out of 36 witnesses 14 have been examined and none of them have uttered a single word against the petitioner. Lastly, he has prayed that the ad-interim pre-arrest bail order may be confirmed. 18. In contra, learned Special Prosecutor NAB has contended that Dr. Asim Hussain {accused No.1} in collusion with petitioner Muhammad Safdar got an agreement with KDLB for concessional treatment facility for 45,000/- dockworkers at the rate of Rs.4.26 per day per worker in the year 1996 but on the contrary Dr. Asim Hussain reneged from contractual obligation and fraudulently KDLB hospital has been made to work as a referral outreach wherefrom almost 73% of patients are referred to Dr. Ziauddin Hospital in connivance with the petitioner Muhammad Safdar, which charged extra amount from KDLB in the heads of OPD and IPD without any list of patient, and after his retirement the petitioner joined Dr. Ziauddin Hospital as General Manager H.R.; that the petitioner extended the contract between KDLB and M/s Ziauddin Trust without getting approval from Board and during investigation statements under Section 161, Cr.P.C. of Dr. Muhammad Shoaib, Nasir Khan and other witnesses were recorded, who have attributed specific role and implicated the petitioner in the commission of offence and during investigation sufficient documentary evidence has been collected which shows that the petitioner in connivance with Dr. Asim Hussain {accused No.1) caused colossal loss to KDLB; that the petitioner actively and in collusion with Dr. Asim Hussain has caused heavy loss to KDLB; that no evidence of enmity in terms of malafide or ulterior motive is available on record, which is a pre-requisite for granting pre-arrest bail, hence the petitioner does not deserve concession of bail. 19. Record reflects that Karachi Dock Labour Board {KDLB} runs its affairs through Chairman and by virtue of its post Chairman KPT would be the Chairman of KDLB. The Board consists of 14 members appointed by the Federal Government. There is also one Vice Chairman to be elected by the Board from amongst the members. Set-up of KDLB provided in the Karachi Dock Workers (Regulation of Employment) Scheme, 1973, promulgated under the Ordinance, 1973, inter-alia, Act of 1974, to regulate the employment of Dockworkers who perform the job of loading/unloading of cargo into/from ships at the Karachi Port. The Board constituted under Clause 4 of the Scheme, 1973, is a body corporate having perpetual succession and common seal with power to acquire, hold and dispose of movable and immovable properties and shall sue and be sued by the said name. KDLB decided to construct 110 bedded hospital building at Keamari, Karachi, to provide treatment facilities to its registered dockworkers and their departments. After completion of 110 bedded hospital building in August, 1995, the Board decided to get the hospital building equipped and run through private organization having experience of running 200 bedded hospital. For this purpose tenders were invited and contract was awarded to Dr. Ziauddin Hospital as per decision of the Board, which is competent authority to take any decision. Record reflects that KDLB entered into an agreement with Dr. Ziauddin Hospital after getting approval in its 236t ordinary meeting held on 27.03.1996 under the chairmanship of Rear Admiral (Retd) Akbar H. Khan. Here it would be conducive to refer relevant portion of the minutes of meeting as under:- "B.R.No.23:- Approved that KDLB Hospital Building be handed over to M/s Dr. Ziauddin Hospital to equip and run the hospital on the agreed terms and conditions and contract documents be got vetted by the Legal Consultantsh
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before execution. In compliance of the decision approved in the meeting, a letter dated 14.04.1996 was issued by the Chairman. The KDLB terminated the agreement of KDLB hospital with Dr. Ziauddin Hospital and the matter was adjudicated before this Court by filing Suit No.39 of 1997, by Dr. Asim Hussain {accused No.1} agains t management of KDLB. During pendency of suit, the management of KDLB resolved the issue by way of comprom ise outside the Court and based on such compromise the suit was withdrawn by signing fresh agreement between KDLB and Dr. Asim Hussain {accused No.1}. After completion of agreement, KDLB extended the agreement from time to time and in the year 2013 agreement was signed by the parties for a period of five years and according to the learned counsel for the petitioner still KDLB hospital is being run by Dr. Asim Hussain hospital management. Record reflects that the petitioner was Secretary of KDLB as well executive officer of Board and it was his responsibility to get the decisions of the Board implemented. Insofar as the contention of Special Prosecutor , NAB, that after completion of period of agreement with Dr. Asim Hussain hospi tal, the petitioner continued this position without getting approval from Board. At this juncture, we have made query from Special Prosecutor as well as I.O. as to whether during investigation Chairman and Members of KDLB were examined under Section 161, Cr.P.C. they replied in negative. Even Special Prosecutor NAB did not deny the fact that still hospital is running under the management of Dr. Ziauddin Memorial Hospital Trust. The petitioner neither had any authority to award contract of KDLB hospital nor any documentary evidence is available on record to show that the petitioner has misused his authority by extending contract to Dr. Asim Hussain {accused No.1} without approval of the Board. Here the question arises as to whether the award of contract of KDLB hospital to Dr. Asim Hussain {accused No.1} was in violation of PPRA Rules and if reply is positive than why the Chairman and Members of the Board, who have awarded contract to Dr. Asim Hussain {accused No.1}, have not been arraigned as accused in the reference, even I.O. did not bother to examine them under Section 161, Cr.P.C. Record did not show any displeasure of the Board on any act of the petitioner , who was not competent authority to award contract. Petitioner has already attained the age of superannuation but still Dr . Asim Hussain {accused No.1} has retained possession of KDLB hospital. 20. From tentative assessment of available material, it transpires that neither the petitioner was competent to award contract to Dr. Asim Hussain {accused No.1} nor he acted in violation of Board decision. KDLB is a body corporate and runs its affairs through Chairman and during investigation neither Chairman nor Members of the Board were examined, even no…
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