ZULFIQUAR HASSAN ALI Versus State
ORDER
AMJAD ALl SAHITO, J.--- Through captioned petitions, petitioners, namely, Zulfiquar Hassan Ali, Shoukat Hussain, and Nazar Ali are seeking post-arrest in NAB Reference No.29/2018 filed under Section 18(g) read with aection 24(b) of the National Accountability Ordinance, 1999 against 15 accused. Previously the said petitioners had filed petitions for bail before filing of the reference, which were dismissed by this Court vide common order dated 16.10.2018 with the observations that "there is sufficient prima facie material on record to suggest that the petitioner had exercised their authority to enrich themselves and a number of persons have also implicated them as the principal beneficiary of the defalcated amounts, but we do not want to make any further observations in this regard as it may prejudice the case of either party." The petitions were dismissed with the further observation that "the petitioners shall be free to file fresh petitions for bail before this Court after filing of reference in the matter if so desired." However, after the dismissal of their application Reference No.29/2018 was filed before the learned Administrative Judge, Anti-Terrorism Court, Sindh Karachi against 15 accused persons and the names of the petitioners also included in the reference. Whereas, petitioners, namely, Karim Farishta, Essa Khan, Barkat Ali and Nizar Ali Fazwani are seeking pre-arrest bail and they are on ad-interim pre-arrest bail granted to them.
2. Brief facts of the prosecution case, as depicted in the Reference No.29/2018, are that on receipt of a complaint from the residents of the Karimabad Ismailia Multipurpose Cooperative Society Limited (hereinafter referred to as "KIMCSL"), Karachi against the management/accused persons of the Society regarding their involvement in corruption and corrupt practices, an inquiry followed by investigation was authorized by DG, NAB (K) vide letter No. NABK2015092210360 /IW-1/ co-a/ 2017/9242, dated 17.10.2017. It is alleged that during the course of the investigation, the case has been established against the accused Nos.1 to 15 through oral and documentary evidence that they caused loss to the public exchequer to the tune of Rs.800 Million (Approx) and embezzled the funds as well as resources of the KIMCSL.
3. Mr. Moulvi Iqbal Haider, learned counsel for the petitioners Zulfiquar Hassan Ali in C.P. No.D-792/2019 and Shoukat Hussain in C.P. No.D-1519/2019 mainly contended that the petitioners are innocent and have been falsely implicated in this case; that neither there is any piece of evidence directly or indirectly against the petitioners nor any witness has alleged that they received any benefit or commission, kickback or bribe while carrying out allocation of any flat/shop in the capacity of Honorary Secretary of the society or ordered converting lavatory into commercial shop, fake election, nomination of Administrator or non-deposit of security fee or any fund in the account of the society during their tenure from 1991 to 2001; that not a single witness has connected the petitioners with the commission of alleged offence. He lastly submitted that the petitioners are in jail and they are no more required for further investigation in the reference. He, therefore, prayed that petitioners may be enlarged on bail.
4. Mr. Abdul Qayoom Abbasi, learned counsel for the petitioner Syed Mazhar Ali Shah in C.P. 'No.D-8454/ 2018 mainly contended that the petitioner is innocent and has been falsely implicated in the reference with mala fide intention and ulterior motives; that nothing has been brought on record to show that petitioner has made any financial gain for himself or for his family members etc; that no loss has been caused to the public exchequer at the hands of petitioner from any transaction with respect to the residents and management of KIMCSL; that the residents of KIMCSL have not deposed against the petitioner that he in league with management of the society has committed any offence; that NAB has failed to place on record any single piece of documentary evidence or any other documents signed by the petitioner, which could connect him with the alleged offence. He lastly prayed that the petitioner may be released on bail. In support of his contentions, learned counsel has relied upon the cases (1) M. Anwar Saifullah Khan v. The State (PLD 2002 Lahore 458), (2) Maqbool Ahmed Lehri and another v. NAB and others (2016 SCMR 154), (3) The State v. M.Idrees Ghauri and others (2008 SCMR 1118) and (4) Sikandar Ali Qureshi v. Chairman NAB and 2 others (2017 PCr.LJ 269).
5. Messrs Syed Mehmood Alam Rizvi and Obaid-ur-Rahman Khan, learned counsel for the petitioner Pervez Akhtar Khan in C.P. No.D-8284/2018 mainly contended that the petitioner is innocent and has been falsely implicated in the reference; that there is no reasonable ground to believe that the petitioner has committed any offence; that there is no allegation that petitioner has made any financial gain for himself or for his family members etc; that the involvement of petitioner in the instant reference is based on mala fide on the part of NAB as the petitioner has performed his duty as required by the law and never misused his powers for any wrongful benefit through illegal means; that as per certificate issued by Engineer concerned certifying the completion of KA 16 and KA 17 blocks, the summary was floated, and the petitioner has signed Para No.10 of the summary and thereafter he was transferred, hence petitioner has not committed any offence; that at bail stage the matter requires only tentative assessment of evidence/material available on record; that no loss has been caused to the public exchequer at the hands of petitioner from any transaction with respect to the residents and management of KIMCSL. He lastly prayed that the petitioner may be enlarged on bail.
6. Mr. Muhammad Munsib Jan, learned counsel for the petitioners, namely, Barkat Ali in C.P. No.D-2314/ 2017, Amin Muhammad Fazwani in C.P. No.D-7746/2017, Essa Khan in C.P. No.D-7747/2017, Nizar Ali Fazwani in C.P. No.D-5252/2018, Sikandar Ali in C.P. No.D-1485/2019 and Muhammad Ali in C.P. No.D-1486/2019, mainly contended that the petitioners are innocent and have been falsely implicated in the instant reference; that no loss has been caused to the national exchequer by the petitioners; that no embezzlement has been proved against them by the NAB authorities; that no public cheating or fraud has been committed by the petitioners; that the petitioners worked on honorary basis in the society and not a single complaint has been made against them by any members of the society. He lastly contended that co-accused Barkat Ali has moved several applications against the NAB authorities and due to which they got annoyed and malafidely booked the petitioner in the instant reference. He prayed for confirmation of the interim pre-arrest bail.
7. Mr. Samsam Ali Khan, learned counsel for the petitioner Karim Farishta in C.P. No.D-8002/2017 mainly contended that the petitioner is innocent and has been falsely implicated in the instant reference, as the petitioner did not receive any call-up notice, whereas, other persons, who were named in the instant reference, have received call-up notices and they have got pre-arrest bail on the basis of such notice; that after search notice, there was no further intimation or action brought in knowledge of the petitioner; that the petitioner received a telephone call on 9.11.2017 from the government PTCL number and was directed to show up in the office of respondent No.2 on the next day, thereafter, the petitioner was continuously threatened through phone calls, besides raids in his home headed by the respondent No.3 were conducted, which shows mala fide on the part of NAB authorities. He lastly submitted that petitioner apprehends undue arrest, harassment, humiliation, and torture at the hands of the respondents. He prayed for confirmation of pre-arrest bail.
8. Mr. Riaz Ahmed Phulpoto, learned counsel for the petitioner Hameedullah Shaikh in C.P. No.D-3530/ 2019 mainly contended that the petitioner is innocent and has been falsely implicated in the instant reference; that the petitioner has no concerned with the alleged offence and has not made any kind of violation/illegality in their official duties which he performed according to law and by-laws of the society, but the respondents with mala fide intention want to involve them in the false, forged, concocted, baseless and self-designed reference/case in order to give him mental torture and agony as well as ruin his honour and respect in the eyes of community and social society. He lastly submitted that petitioner apprehends undue arrest, harassment, humiliate and torture at the hands of respondents. He prayed for confirmation of the interim pre-arrest bail to the petitioner.
9. Conversely, Mr. Riaz Alam Khan learned Special Prosecutor for NAB assisted by Investigating Officer Sarwar Ahmed Khan vehemently opposed for confirmation of the pre-arrest bail as well as grant of post-arrest bail to the petitioners. It is, inter alia, contended by the learned Special Prosecutor for NAB that private respondents with the connivance of the official respondents have caused loss to KIMCSL/public exchequer and embezzled the funds worth millions of rupees by converting the amenity plots into commercial by misusing their powers and positions. He further submitted that a total of 23 buildings were approved as per building plan dated 24.08.1998 and during investigation in these buildings/blocks violation was noticed; that the management of KIMCSL misused amenity areas for commercial purpose, hence they have given loss to the society/exchequer approximately to the tune of Rs.800 Million. He lastly submitted that no mala fide on the part of the NAB authorities or investigating officer has been pointed out, hence the petitioners/ accused are not entitled to the concession of pre-arrest as well as post-arrest bail.
10. We have heard the learned counsel for the parties and have minutely perused the record of the cases with their able assistance. It is established from the documentary evidence that Aga Khan Ismailia Charitable Trust had gifted a Plot No.ST-2, Block-3, situated in K.D.A. Scheme No.16, F.B. Area, Karachi admeasuring 8-30 acres (40,172 square yards) vide Gift Deed dated 04.03.1992 for buildings to be constructed thereon and the possession thereof was also handed over to the Society to run the affairs for the benefit of their members, who were residents of the colony known as Karimabad Ismailia Multipurpose Cooperative Housing Society, Karachi (hereinafter referred to as "KIMCSL"). But the private petitioners/ respondents by violating the bye-laws occupied illegally and unlawfully the management of the society. A total of 23 building blocks were approved by Sindh Building control authority (SBCA) with amenity area admeasuring 19,500 sq.feet including Primary School, Recreational area, Library, Lavatories, air raid shelters and Emergency Exit (Gate) of building No(s).KA10, KA11, KA16 and KA17. Afterwards the revised plan was submitted by the management/ private petitioners of KIMCSL before the official Petitioners/ SBCA, whereby the reserved area for amenity was converted into commercial zone. The official respondents by misusing their authority, power and position, in connivance with each other allowed such conversion in violation of Sindh Building Control Authority rules and regulations as well as in contravention of building plan dated 24.8.1998 and approved the same. Thereafter, the petitioners/management allegedly sold that area at high rates, but the amount so received were pocketed by them as during investigation, it was found that huge amounts were deposited by them in their personal accounts being maintained by them in bank-like arrangement being operated by Ismaili Community in Al-Noorany Housing Society. Further, it has also come on the surface that the transfer and registration fees to the tune of Rs.30.5 Million, the security deposit amounting to Rs.76 Million were collected by the management/ petitioners, which was not mentioned in the books of account and embezzled by the office bearers of KIMCSL/petitioners in the same manner as above.
11. The corruption has spoiled Pakistan's image and is resulting in ever-increasing poverty, unemployment, and hunger. In this case, the land 8-30 acres (40,172 sq.yards) was gifted by Aga Khan Ismaili Charitable Trust to the KIMCSL for welfare of the people, instead the management received huge amounts by selling amenity areas and used the same for their welfare. It would not have been possible without the role played by the official/ accused belonging to the Sindh Building Control Authority, who approved the revised plan illegally in violation of SBCA Rules and thus jointly caused loss to the tune of Rs.800 Million. It is the well-settled principle of law that at bail stage only tentative assessment is to be made. We are of the view that prima facie there is sufficient material available on record to connect the petitioners, namely, Barkat Ali, Nizar Ali Fazwani, Karim Farishta, Amin Muhammad Fazwani and Essa Khan with the commission of the offence. The petitioners have failed to make out the case for grant of pre-arrest bail. No mala fide on the part of NAB authorities or investigating officer has been pointed out. Accordingly, their bail petitions stand dismissed and the orders of this Court granting interim pre-arrest bail to the said petitioners are hereby recalled and the post-arrest bail of the petitioners, namely, Hameedullah Shaikh, Sikandar Ali, Muhammad Ali, Pervez Akhtar Khan, and Syed Mazhar Ali Shah is also dismissed.
12. Reverting to the cases of petitioners, namely, Zulfiqar Hassan Ali and Shaukat Hussain. It may be mentioned that they had already left KIMCSL in the year 2005 and thereafter had no connection with affairs of the society any more. Prima facie, there is no charge against them of converting any amenity area into commercial one and selling the same for their own benefit either. The role of their being in connivance with the other accused alleged against them would be determined by the trial Court after recording evidence. At this stage, on a tentative assessment of material, their case appears to be one of further enquiry.
13. In view of the above, both the petitioners have made out a case for bail. Consequently, C.P. No.D-792/2019 filed by Zulfiqar Hassan Ali and C.P. No.D-1519/2019 filed by Shaukat Hussain are allowed. The petitioners namely Zulfiqar Hassan Ali and Shaukat Hussain are granted post-arrest bail subject to their furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lacs Only) each with P.R. bond in the like amount to the satisfaction of the Nazir of this Court.
14. All the petitions are disposed of in above terms. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party on merits before the trial Court.
MH/Z-23/Sindh Order accordingly.