SHAH Versus THE STATE

Crl Bail Appln. No. 2252/1996, decided on 2nd January, 1997.

ORDERDEEDAR HUSSAIN SHAH, J. - The accused/applicant through this hail application seeks bail in crime No. 14/96, registered by FIA, CC-I, Karachi, for an offence under Section 409/109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947. Brief facts of the case, according to the FIR, lodged by Khaliquzzaman Khan, A.D. Are as under: -"Consequent upon Special Enquiry No. 2/96 of FIA I & AS, Karachi conducted by Mr. Ghulam Subhani Qureshi, Assistant Director, FIA I & AS, Karachi, Airport, the following facts have been established:-1. That piece of land of about 75 acres from China Creek Bank Water adjacent to Mai Kolachi Road originally belonged to the KPT. This land which was laying Barron since long actually situated at a highly precious location connecting Bath Island Clifton to Moulvi Tamizuddin Khan Road.2. In 1989, the then Chief Minister of Sindh, Syed Qaim Ali Shah approached the Federal Government and wrote, a letter to the Prime Minister of Pakistan Vice No. Scay-CM/876/89, dated 15.5.1989, requested for transfer of-75 acres of KPT land to Government of Sindh. The apparent purpose of the transfer was shown as better utilization and development of the city.3. Later on Mr. Salman Farooqui, the then Additional Secretary, Prime Minister's Secretariat, Rawalpindi, wrote a letter to Mr. N. H. Akhter, Secretary Communications, Islamabad, and Syed Ijlal Haider, Secretary, Defence, Islamabad vide No. PMS Sectt. (Public) U.O. No. DS/Imp/Mis/2265, dated 21.5.1989 requesting to offer their views urgently in light of Prime Minister's minutes.4. Mr. Aleem Akhter, the then Chairman, KPT, vide letter dated 27.5.1989 addressed to Joint Secretary (Public) Ministry of Communication, Govt, of Pakistan, Islamabad, strongly opposed the said orders for transfer of 75 acres of KPT land to Govt, of Sindh.5. No reply from Ministry of Defence was received as nothing is available on record.6. Further due to intense political pressure of Maj. Gen. (Retd.) Naseerullah Khan Babar, the then Special Assistant to the then Prime Minister, Mr. Aleem Akhter Shah, the then Chairman, KPT, wrote a letter to General Sahib dated 12.9.1989, agreeing for transfer of 75 acres of land of[Vol. IVKPT to Govt, of Sindh. Record shows that this consent was without any lawful authority. The said land was sold out to Govt, of Sindh at a total cost of Rs. 20,49,77,040/- (the said amount was never paid to KPT).7. Record further shows that the land in question pertaining to KPT, for which Govt, of Sindh has not paid any amount, and which was acquired for betterment and development of the city, was fraudulently with ulterior motive sold out by the then Chief Minister Sindh Syed Muzaffar Shah to different persons.8. Said order for allotment of land was mala fidely made on 6.12.1992, whereas it was withdrawn on 7.12.1992, possession was shown to have been delivered on 9.12.1992./9. On 18.1.1993, Mr. Abdul Rauf Chaudhiy the then Joint Secretary Prime Minister's Secretariat (Public) vide U.O. Nos. J.S. (Imp.) 22O/CO77/36043 addressed to the Chief Secretary Sindh, directed to return 75 acres of land to KPT as directed by the then Prime Minister.10. In April, 1994, KPT filed a Suit No. 240/94 before High Court of Sindh, Karachi stating therein full, facts, requesting for conciliation of allotment order and reversion of the said land to KPT.11. It was in November, 1994, when R. Adm. (Retd.) Akber H. Khan took over as a Chairman KPT and started working for withdrawal of the said suit pending before the High Court of Sindh, Karachi.12. Finally he could prevail over the Board of Trustee and other officials to cover up the illegal acts by allotting them verious size of plots in KPT and withdrew Civil Suit No.240/94 from the High Court and as such the land in question actually valued at Rs. 3000.000 million was sold out at a price of Rs. 204. 977 million and as such huge loss was caused to Govt, exchequer and corresponding gain to the parties and to themselves. In view of the foregoing series of acts or record, it is established beyond doubt that the accused persons namely R., Adm. (Retd) Akber , Hi Khan and others by defying the settled rules and regulations willfully end deliberately, having common object and intention abused the official position as public servant and by doing so they with a mala fide intention acted in such a manner which resulted into substantial loss to the public^ exchequer and corresponding pecuniaiy advantages to themselves and thereby committed offences punishable under Sections 409, 109 PPC read with Section 5(2) Act- II of 1947."During investigation accused/applicant Abdullah Shah was taken by FIA from his residence on 18.12.1996, on the pretend; of recording his evidence in a criminal case, which was being investigated against Wajid Shamsul Hasan, former High Commissioner of Pakistan in U.K. The applicant was already granted pre-arrest bail in the same case by the Hon'ble Chief Justice on 14.12.1996. On arrival at FIA CC-I, Karachi Police Station, the applicant was informed that he was under arrest in Crime No.14/96.14. Application of bail, on behalf of the accused/applicant was moved before the learned Special Judge (Central), Karachi, but the same was rejected by him on 22.12.1996, with the following observations:-"As regards the bail application of accused Abdullah Shah, his advocate Mr. Azizullah Shaikh argued at length. Syed Israr Ali, AD (Legal> for the State at the time of his arguments said that accused Abdullah Shah Is n6t Being challenged in'this Court and his case will be challaned before the Provincial Anti-Corruption _ Court, therefore this Court has no jurisdiction in the matter.' Looking toTJiis situation that the Court has no jurisdiction in the matter and the case of accused Abdullah Shah would be taken to the Court of Provincial Anti Corruption, his bail application is dismissed having no jurisdiction to this Court."Thereafter the applicant has approached this Court for bail.15. Mr. Abdullah K Shaikh, learned counsel for the accused/applicant has contended that accused/applicant was granted bail before arrest by the Hon'ble Chief Justice in FIR No. 13/96 in Cr. Bail No. 2024/96, lodged by the FIA on 28-11-1996, in FIR No. 7/96 in Cr. Bail No. 2135 of 1996 on 11-12-1996 and pre-arrest bail by my learned brother Kamal Mansoor Alam, J. In Mir Murtaza- Bhutto's case, being Gr. Bail No. 2019/96 on 8-11-1996; that name of the accused/applicant is not mentioned in the FIR, bearing No. 13/96, lodged by the FIA; that interim charge-sheet for the same crime was submitted on 15-12-1996 wherein name of the accused/applicant Abdullah Shah is not mentioned; that 161 Cr.P.C, statements of five P.Ws, were recorded but none of the P.Ws, has implicated the accused/applicant Abdullah Shah; that case against the accused/applicant has been foisted due to political reasons and he has been victimised due to political differences with the Government of the days; that whatever evidence against the accused/applicant is available, that is documentary in nature, which is purporated to be summary, approved by theaccused/applicant on 10-1-1996 and submitted for approval by the Secretary to Government of Sindh, Land Utilization Department.Mr. Azizullah K. Shaikh, learned counsel for the applicant has referred the following case laws:-(1) Unreported judgment passed in Cr.Misc. 248 of 1991, delivered by Qaisar Ahmad Hamidi, a celebrated Judge, in a case initiated against Syed Qaim Ali Shah, former Chief Minister of the Province of Sindh, who was alleged to have dishonestly disposed of 37 acres of land, situated in Gulistan- e- Jauhar, Karachi, to different builders at the instance of co-accused Asif Ali Zardari at a nominal price, thereby causing pecuniary advantages to the purchaser and causing huge pecuniary loss to the Government of Sindh. The learned Judge was pleased to allow the application and quash the proceedings, observing that "to allow the case to proceed would be to allow a mock trial to proceed, with no purpose".(2) 1977 Pak. Cr.L.J.676-Case of Brig (Retd.) Sahib Dad Khan v. TheState:- The dictum of this authority is as under: -"Petitioner, an Ex-Minister of Provincial Cabinet, accused ofembezzling funds earmarked for Punjab Peoples Festival andother malpractices-Allegations, however, relating to rendition ofaccounts and scrutiny of various documents from GovernmentDepartment, requiring a good deal of time and entailing lengthyinvestigation-Bail ad interim confirmed."(3) 1978 SCM R 64-Case of Ijaz Akhtar v. The State:-In this authority the learned Judge has held as under:-"Fact of amount allegedly embezzled^by accused being large-By itself, held no ground for refusing * bail- Apprehension that accused might tamper with evidence if enlarged on bail also, held further, no ground for refusal of bail-State could in such eventuality prosecute its remedies in Sessions Court".

(4)1983 Pak.Cr.L.J. 2010-Case of Abdul Hay-uz-Zafar v. The State:- <>The learned Judge in this authority has observed as follows:-That the amount involved is of course sufficiently large and this fact by itself would be no ground for refusing bail particularly when the investigation is complete, except that the report of the hand-writing expert is awaited. There is more force in the contention of the learned counsel that the proposed evidence to be adduced at the trial comprised documentary evidence and tampering with the same is not possible. As far as the question of prohibition contained in sub-section (1) of Section 497 is concerned, a Court is not supposed to keep in view only the maximum sentence provided under relevant law rather it is to be ' seen what punishment is likely to be awarded ultimately to an accused in particular circumstances of the case. To grant the bail is rule and to refuse is an exception. The petitioner is admittedly a public servant and there is no likelihood of his abscondence."(5) 1988 S.C.M.R. 1223-Case of Raza Muhammad Sial v. The State:-* ' 'VDictum of this authority is as follows:- --Petitioner charged with misappropriating Government wheat valued at about Rs. 87 lacs-High Court refusing.To grant him prearrest bail-Prosecution witnesses hardly implicating petitioner- Evidence requiring further inquiry in order to connect petitioner with the crime. Pre-arrest bail to the applicant was granted.

(6)1995 S.C.M.R. 170-Case of Saeed Ahmed v. The State:- .The rule laid down in this authority is as foilows:-Case entirely depended upon .Documentary evidence which was in possession of the prosecution and no possibility of tampering with such evidence existed-Bail was granted.16. Mr. Syed Tariq Ali, learned Standing Counsel for the State has contended that 13 acres of State land has been allotted below the market value of the land; that organized method has been adopted to put heavy loss to the Government exchequer; that public property has been disposed of at a veiy through-away price; that the entire burglary was committed at the behest of the accused/applicant; that the Government functionaries have acted for help of the high-ups; that provisions of Sections 409/109 -PPC are fully attracted in the case and that the application may be dismissed.17. I have gone through the material placed with the case. Admittedly the accused/applicant was granted pre-arrest bail by this Court in various crimes. Name of the accused/applicant does not appear in the FIR. The interim charge-sheet, submitted by the,prosecution, does not show the nameof the accused/applicant. That the statement of the learned defence counsel, that 161 Cr.P.C, statements of five PWs were recorded hut none of them has implicated the accused/applicant, has not been controverted by the State Counsel. Before the Special Judge (Central), Karachi it was stated by Syed Israr Ali, AD(Legal) for the State" "that accused Abdullah Shah is not-being challaned in this Court", and the bail application was rejected. The prosecution submitted application under Section 167' Cr.P.C.Mentioning therein that "efforts are being made to locate Mr. Muhammad Iqbal Khan to whom Syed Abdullah Shah granted 13 acres of KPT land at the rate of Rs. 25/- per square yard for residential, commercial/industrial purpose. Since the investigation of the case has not yet completed it is therefore, requested that nine (9) days police custody remand may kindly be granted w.e.f.23.12.1996 to 31.12.1996". The learned Magistrate did not allow police remand and request was dis-allowed and the applicant was remanded to judicial custody upto 28-12-1996. The evidence so far -collected by the prosecution is documentary in nature; which is in possession of the prosecution prima facie same,, cannot be tampered with by the accused/applicant at this stage. Series of the cases initiated' by the prosecution against the applicant and granting him bail by the Court, supports the version of the learned counsel for the applicant that Government of the days due to political differences wants to harass, humiliate and torture the applicant, by involving him in cases. The unreported judgment, referred hereinabove, pertaining to the dishonest disposal of the State land, also supports the case of the applicant that whatever the applicant did, was in the capacity of Chief Minister and the proceedings initiated against the Chief Minister (Syed Qaim Ali Shah) in a criminal case, were quashed by the learned Judge. The other authorities cited by Mr. Azizullah K. Shaikh, in my humble opinion are relevant and applicable to the present case, which I most respectfully follow.18. Upshot of the above discussion is that, prima facie, case of the accused/applicant requires further enquiry. Consequently I am inclined to allow the application, which is hereby granted. The accused/applicant may be released on bail on furnishing one solvent surety in the sum of Rs. 2,00,000/- (Rupees Two Lac only) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. He may be released, if n6t required in any other case. After hearing the learned counsel -for the parties I have allowed the application by short order dated 29-12-1996. These are the.Reasons for the same.