MUMTAZUL HAQ vs NATIONAL ACCOUNTABILITY BUREAU (NAB)
The petitioner, facing trial in an Accountability Court in NAB Reference No. 49 of 2015, sought the quashment of the reference after his application under Section 265-K, Cr.P.C. was dismissed. The allegations against the petitioner, an official of the Karachi Development Authority, included issuing illegal allotment orders for plots carved out on restricted public land under the garb of alternate plots. The petitioner contended that the allotments were made properly or under duress and were subsequently cancelled, causing no loss to the exchequer. The Sindh High Court held that inherent powers under Section 561-A, Cr.P.C. or constitutional jurisdiction under Article 199 will not be exercised to quash proceedings when prima facie evidence connects the accused to corruption and the trial is at an advanced stage, as doing so would stifle the prosecution. The court laid down the principle that quashment of a criminal reference is unwarranted where material on record discloses prima facie allegations of corruption and abuse of official authority, and disputed questions of fact must be resolved during the ongoing trial.
- Can a High Court quash a NAB reference under Section 561-A, Cr.P.C. or Article 199 of the Constitution when prima facie evidence of corruption exists against the accused?
- Whether the quashment of criminal proceedings is justified at an advanced stage of trial where prosecution witnesses have already been examined?
- Does the subsequent cancellation of an illegal plot allotment exempt a public official from prosecution for corruption under the National Accountability Ordinance?
- Section 265-K, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Article 199, Constitution of Pakistan 1973
ORDER
AHMED ALI M. SHAIKH, C.J.---Petitioner along with twenty others facing trial in NAB Reference No,49 of 2015, pending adjudication before the Accountability Court No,II, Karachi, seeks quashment of the Reference. - Earlier, his application under section 265-K, Cr.P.C. was dismissed by the trial Court vide impugned order dated 16.11.2016.
2. Facts giving rise to this petition are that petitioner along with others has been arraigned in aforesaid NAB Reference. During investigation it surfaced that thirteen (13) plots in Block No,1, Gulistane-Jauhar, Scheme 36, each measuring 293.33 square -yards, were illegally created and constructed upon on the land reserved for water conduit of Karachi Water and Sewerage Board (KW&SB) and High Tension Line of K-Electric by the officials of Karachi Development Authority (KDA) in connivance with officials of Master Plan Department (MPD), KW&SB and Sindh Building Control Authority (SBCA). These plots were allotted illegally under the garb of exchange/alternate to the allottees claimed properties in Korangi Township, which properties could not be allotted to them for double allotment. In other words, the allottees were compensated by means of said allotments also known as China Cutting. Investigation also revealed that all the fake allottees of Korangi Township have executed General Power of Attorneys to others who transacted these properties.
However, neither any original allottee appeared before the KDA nor their whereabouts were found out. The allegations against the petitioner is that he being Additional Director (R-I), KDA and discharging his duties also in the capacity of the Secretary of Alternate Plot Allotment Committee issued illegal allotment orders of plots of Scheme No,36 while factually original allottees never appeared before him nor the attorneys had duly registered the General Power of Attorney.
3. Petitioner present in person submitted that he is quite innocent and has no concern with the creation of plots and construction raised on it. According to him the plots were created on unspecified land legally with the approval of Director General, KDA. He further submitted that Alternate Allotment Plot Committee interviewed the applicants and recommendations of the Committee were also approved by the Government Body of KDA vide Resolution No,106, passed on 22.11.1997. He further submitted that even otherwise the thirteen (13) allotment orders were cancelled after thirty (30) days on 14.3.1998 for non-payment. According to him, at the most the case against him pertains to irregularity, if any, in issuing those thirteen allotment orders and as said allotments were cancelled no monetary loss was caused to public exchequer. He also contended that he has been facing the rigors of trial since long and it is yet to be determined whether the plots were allotted to the genuine effectees or under the garb of displaced persons/affectees some blue-eyed boys were accommodated. He lastly submitted that in the given circumstances continuance of the proceedings against him before the Accountability Court is sheer abuse of process of law and Court and same are hanging over like the sword of Damocles unless quashed.
4. Per contra, Mr. Muhammad Altaf, Special Prosecutor, NAB submitted that trial in aforesaid NAB Reference is in progress and a number of prosecution witnesses have also been examined, which implicated the petitioner. According to him there is ample evidence against the petitioner connecting him with the commission of alleged offence of corruption and corrupt practices. He prays that the petition be dismissed.
5. We have consciously considered the contention raised by the petitioner and Special Prosecutor, NAB and with their able assistance minutely perused the record. Admittedly the petitioner was holding the post of Additional Director (R-1) and also acted as the Secretary Alternate Allotment Plot Committee. According to prosecution he issued allotment orders in respect of plots carved out on the land reserved for water conduit of KW&SB and High Tension Line of K-Electric. These plots were carved out and allotted to fake claimants who could not be allotted properties in Korangi Township on account of double allotment. According to the petitioner, the said allotments were made under duress and nonetheless the same were cancelled after one month for non-payment.
We have noticed that not a single allottee appeared before the KDA and in fact the so-called affectees got their booty by executing General Power of Attorneys. In view of above and the allegations leveled against, prima facie, manifests ill intentions muffled with corruption on the part of accused persons as valuable public property was handed over in compensation/alternate to the so called effectees who minted money by selling the same on higher rates.
6. It is settled legal position that powers of this Court either under Article 199 of the Constitution or section 561-A, Cr.P.C. can be exercised, inter alia, when there is no iota of evidence, very initiation of the proceedings is proved to be mala fide, jurisdictional defects and in exceptional cases where it is apparent that continuation of proceedings complained of would amount to abuse of process of Court or to secure the ends of justice it is absolutely necessary to exercise inherent powers. In instant case, petitioner during course of arguments submitted that he has allotted said plots but under duress and once such allotment orders were cancelled he was not liable to prosecution under NAB Ordinance. In the given circumstances, material available on record and in wake of progress made at the trial quashing the NAB Reference against the petitioner at this stage would amount to stifling and prejudicing the prosecution case simultaneously influencing the trial Court where a number of co-accused are also facing trial.
In view of our above discussion, instant petition is dismissed along with listed applications. The trial Court is directed to expedite the trial and I.O. is directed to ensure presence of remaining prosecution witnesses on the next date.