Order Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C.
P. No. D – 765 of 2019
along
with C. Ps. No. D – 761, 762, 763, 764 and 767 of 2019
Before :
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Khadim Hussain Tunio
For bail before / after arrest
For hearing of main case
Date of hearing : 16.10.2019.
Syed Zakir Hussain Shah assisted by Mr. Mansoor Ali Jatoi, Counsel for
petitioner in CPD-765/2019.
Mr. Athar Abbas Solangi assisted by Mr. Aamir Nazeer Shaikh, Counsel for
petitioner in CPD-764/2019.
Mr. Inayatullah Morio, Counsel for petitioners in CPD-761, 762 and
767/2019.
Mr. Muhammad Ali Napar, Counsel for petitioner in
CPD-763/2019.
Mr. Muhammad Zubair Malik, Special Prosecutor NAB Sukkur along with Aijaz
Ahmed, Investigation Officer.
O R D E R
NAIMATULLAH
PHULPOTO, J. –
Through the instant Constitution Petitions under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973, petitioners Shahid Iqbal
Siyal, Saeed Akbar Siyal, Meenhal Jatoi, Nazir Ahmed Shaikh and Ghulam Mustafa Hulio
seek pre-arrest bail. Haji Gahno Khan Jatoi has filed Constitution Petition for
post-arrest bail in Reference No.04/2019, pending before learned Judge,
Accountability Court at Sukkur.
2. For ready reference, contents of
Reference No.04/2019 are reproduced as under:
1.
That upon receipt of complaint against
Haji Gahno Khan and others regarding the allegations that Haji Gahno Khan and
his family members are the beneficiary of properties, which are transferred in
their names on the basis of forged and fake documents, an inquiry was
authorized which was subsequently upgraded into investigation vide
authorization letter dated 27.12.2019. The Investigation Officer has submitted
the investigation report which may kindly be read as an integral part of this Reference.
2.
That the investigation report has
revealed that the accused persons have fraudulently misappropriated Govt.
land of different departments i.e. Forest Department, Larkana Municipal
Corporation, Evacuee Property and Sindh Goth Abad Scheme Larkana and caused
loss to the Govt. Exchequer.
3.
That accused No. 01 to 04 in active
connivance with other accused persons managed / maneuvered 3 x fake decrees of
485-30x acre forest land of Deh Faridabad, Tapo Mad Bahu, now Taluka Bakrani
(previously Taluka Dokri) and kept entries in revenue record which caused loss
to the Govt. Exchequer to the tune of Rs. 439746750/-. There is no record of
these 3 x decrees in the record room of District Court Larkana. The detail of
the decrees is as under:
i.
Decree dated 30.06.1890 in case No.
646/1889 filed by Meenhon Khan S/o Ghulam Hyder Jatoi V/s Deputy Conservator
Forest In charge Sindh Circle and others, area involved S. No. 310 to 324 and
327 to 329 total land 95.15 acres.
ii.
Decree dated 19.02.1892, in case
No.70/1891 Kareem Bux S/o Meenhon Shaikh V/s Deputy Conservator Forest In
charge Sindh Circle and others, area involved S.No.327 total land 257.15 acres.
iii.
Decree dated 07.06.1895, in case No.
1496/1894 Chakar Khan S/o Khair Muhammad V/s Deputy Conservator of Forest
Officer In charge Sindh Circle and others, area involved S.No.325, 132.30
acres.
4.
That accused No. 05 & 06 in active
connivance with other accused persons misappropriated Govt. forest land made
fake entries in revenue record of 237-31 acres land out of 485-30 acres above stated
land in their favour illegally. They, being local persons have had knowledge
that the land pertains to Forest Department of Govt. of Sindh, but they
fraudulently got enter the land in their names on meager price which caused
loss to the Govt. Exchequer.
5.
That accused No. 01, 03, 07 & 08 in
active connivance and collaboration with each other misappropriated (Govt.
Land), Royal Cinema situated at city survey No. 1505/5 A, B, C, D of measuring
1477.7 sq. yards in Municipal Corporation Larkana and subsequently sold the
said land to private persons and caused loss to the Govt. Exchequer to the tune
of Rs. 31,67,22,022/-.
6.
That the accused No. 07 being Taluka
Nazim illegally recommended the lease in favour of accused No. 01 by misusing
his authority in contravention of the resolution of the council and he also
facilitated further transfer of Govt. land which caused loss to the Govt.
Exchequer.
7.
That the accused No. 08 being Transition
Officer in the year 2012 unauthorizedly by misusing his authority in contravention
of resolution of council illegally recommended for the lease in favour of the
accused No. 01 at the rate proposed in year 2002 which caused loss to the Govt.
Exchequer.
8.
That the investigation has revealed that
Khuda Bux Larik (Ex-Assistant Commission / City Survey Officer), Abdul Qadir
Khokhar (Ex-Mukhtiarkar), Mushtaq Ali Soomro (Ex-Tapedar and Muhammad Ali
(Ex-Supervisory Tapedar) have died. Therefore, they have not been arrayed
accused in the Reference.
9.
That further investigation regarding
misappropriation of properties is under process and supplementary of separate
reference will be filed in the light of facts and circumstances.
10.
That in view of forgoing facts and
evidence collected so far, it is established that accused persons in active
connivance and collusion with each other and deceased Officers / Officials of
Revenue Department by misusing their authorities committed breach of trust,
misappropriation, and caused loss to the Govt-exchequer amounting to Rs.
75,64,68,750/-. The accused persons thereby committed the offence of corruption
and corrupt practices as defined in Section 9 (a), (iii), (vi),
(xi) & (xii), punishable u/s 10 of NAO, 1999 and schedule thereto.
11.
That
on appraisal of the material and evidence collected during the inquiry and
investigation placed before me, I am of the opinion that it would be proper and
just to proceed further against above referred accused persons, as there is
sufficient incriminating material available on record to justify the filing of
this Reference. Thus, the matter is being referred to this Hon’ble Court within
the meaning of section 18(g) read with section 24(b) and 14(a) of the NAO,
1999. Final investigation report, list of witnesses, and documentary evidence
as per list are attached herewith.
3. Notices
were issued to the Special Prosecutor NAB as well as DAG.
4. Para wise comments are filed on behalf
of respondent / NAB in the petition of Haji Gahno Khan bearing C. P. No. D-765/2019
in which, mainly, it is stated that petitioner is a beneficiary and is involved
in interpolation of record and there is sufficient incriminating material
against the accused which shows his involvement in the offence of corruption
and corrupt practices. In the comments filed in other petitions for pre-arrest
bail, it is mentioned that investigation report has revealed that accused
persons have fraudulently misappropriated Government land of different
Departments i.e. Forest Department, Larkana Municipal Corporation, Evacuee
Property, Sindh Goth Abad Scheme Larkana and caused loss to the Government
exchequer. All the petitioners / accused who have applied for bail have been
found, during investigation, to be involved in the offence in which Reference
has been filed against them before learned Accountability Court, Sukkur.
5. Syed
Zakir Hussain, learned counsel for petitioner Haji Gahno Khan Jatoi argued that
no fake decree was prepared by the father of the petitioner and petitioner Haji
Gahno Khan Jatoi is the owner of the property shown in the Reference. It is
further submitted that Forest Department claimed ownership of the land and
civil litigation is pending before Circuit Court, Larkana. As regards to the
property of Royal Cinema of Municipal Corporation, it is submitted that the
same has been acquired by petitioner Gahno Khan by legal procedure. Counsel for
the petitioner argued that out of 17 witnesses, evidence of 07 witnesses has
been recorded. Nothing incriminating has come on record against the petitioner.
Lastly, it is submitted that allegations against the petitioner are based upon
the documentary evidence. There is no question of tempering and the petitioner
is aged about 72 years and suffers from hypertension and heart ailments. In
support of his contentions, reliance is placed upon the case of Muhammad
Faisal v. Chairman, National Accountability Bureau, Islamabad and another
(2017 P Cr. L J Note 159).
6. Mr.
Inayatullah Morio, learned counsel for petitioners Shahid Iqbal Siyal, Saeed
Akbar Siyal and Ghulam Mustafa Hulio contended that original land belongs to Karam
Khan Jatoi, and petitioner Shahid Iqbal Siyal purchased it from Gahno Khan;
that civil litigation on Forest land is pending before competent Court of law.
Mr. Morio referred to the various portions of the evidence of PWs and argued
that original land was in the name of Karam Khan Jatoi and it was purchased by
Shahid Iqbal Siyal and Saeed Akbar Siyal by way of registered sale deed. Mr.
Morio submitted that trial Court has framed defective charge. On the point of
mala fide, he argued that revenue officials, who kept the entries in the
revenue record, were not joined as accused in the Reference. Mr. Morio further submitted
that petitioner Ghulam Mustafa Hulio was Transition Officer at the relevant
time in Larkana Municipal Corporation, he had acted in accordance with law and
nothing contrary to the law was done by him. Lastly, argued that Reference is
based on mala fide on the part of NAB. Mr. Morio relied upon the cases reported
as Asif Ali Zardari v. Federation of Pakistan through Secretary Interior,
Islamabad and another (2005
SCMR 422) and Rehmatullah
v. The State and another (2011
SCMR 1332).
7. Mr. Athar Abbas Solangi, counsel for petitioner Nazeer Ahmed
Shaikh and argued that he being Taluka Nazim did not recommend for illegal
lease in favour of accused No.1 by misusing his authority in contravention of
resolution of council and did not facilitate further transfer of the Government
land, which caused loss to the government exchequer. Learned counsel for
petitioner alleged serious mala fide on the part of NAB.
8. Mr.
Muhammad Ali Napar, counsel for petitioner Meenhal Khan argued that prosecution
is motivated with ill-will and without collecting incriminating material
against petitioner Meenhal Khan. Counsel for petitioner Meenhal argued that NAB
has no material to show that petitioners Gahno Khan, Meenhal Khan and Karam
Khan had managed fake decrees of 485-30 acres of the Forest in Deh Faridabad
and got entries kept in the revenue record. It is submitted NAB has caused
humiliation to petitioner.
Learned
counsel for the petitioners lastly argued that decrees dated 30.06.1890 (Case
No.646/1889), 19.02.1892 (Case No.70/1891) and 07.06.1895 (Case No.1496/1894)
were genuine and no Court of law had declared them fake. Lastly, it is
submitted that there is no sufficient incriminating material available on
record to justify the filing of the Reference against the petitioners and
argued that Reference is based on mala fides and prayed for bail.
9. Mr. Muhammad Zubair Malik, learned
Special Prosecutor NAB argued that during investigation sufficient material has
been collected against the petitioners for filing Reference against them.
Learned Special Prosecutor NAB further argued that petitioner Haji Gahno Khan
Jatoi is main accused of the properties, which are the subject-matter of the
Reference and said petitioner has caused huge loss to the Government exchequer.
It is argued that role of each accused is mentioned in Reference and evidence
of 07 prosecution witnesses has been recorded. It is argued that deeper
appreciation of evidence is not permissible at bail stage. He pointed out that
Revenue officials involved in this case, have expired before filing of
Reference. Lastly, it is submitted that essentially required considerations of
mala fide or ulterior motive for grant of pre-arrest bail are missing in the
case. Mr. Zubair has also opposed application for post-arrest bail of
petitioner Haji Gahno Khan. In support of his submissions, reliance is placed
upon the cases of Mrs. Riaz Qayyum v.
The State and another (2004 SCMR 1889) and Rana
Abdul Khaliq v. The State and others (2019 SCMR 1129).
10. After hearing learned counsel for the
parties, we have carefully perused the material collected against the
petitioners during investigation.
11. This Court while considering a bail application
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is
to take into account the nature and gravity of the offence. During
investigation, following material was collected against the petitioners /
accused:
Haji
Gahno Khan Jatoi
(a)
Haji Gahno Khan Jatoi S/o Karam Khan Jatoi in
connivance with the then Assistant Commissioner Larkana late Khuda Bux Larik
and the then Mukhtiarkar Dokri late Abdul Qadir Khokhar got prepared fake
decrees in the name of his elders whereas while entries were kept in revenue
record in such a way that whole land comes under the possession of Haji Gahno
Khan and his family members.
(b)
The accused in connivance with his brother
Haji Menhal got the possession of plot bearing City Survey No. 1507/5ABCD, then
in connivance of then City Survey Officer kept the entries in favour of K. S
Ahmed Naji and then transferred to himself and hence become to sole beneficiary
of the said property.
Haji
Menhon Khan Jatoi
(a)
Haji Menhon Khan S/o Haji Karam Jatoi in
collusion with Haji Gahno Khan and officials/officers of Revenue Department
managed fake decrees for Forest land and got entered in the revenue record and
subsequent transfer to him as his share currently land i.e. 40-10 Acres is
entered in his name.
(b)
The accused in connivance with his brother
Haji Gahno Khan Jatoi transferred the plot bearing City Survey No. 1507/5ABCD
in the name of Haji Gahno Khan, then in connivance of then City Survey Officer
kept the entries in favour of K. S Ahmed Naji for subsequent transfer to Haji Gahno
Khan Jatoi.
Saeed
Akbar Siyal
The
accused in collusion and collaboration with accused Haji Gahno Khan and officer
/ officials got entered the fake entries in revenue record and acquired 149-11
Acres of Forest Land through attorney shown purchased at the meager rate of Rs.800000/-
in total, though the Land’s per acre Produce Index rate was 1200 per PI. Unit.
Hence accused knowingly/intentionally benefit against his committed act in
illegal transfer of Forest land.
Shahid
Iqbal Siyal
The
accused in collusion and collaboration with accused Haji Gahno Khan and officer
/ officials got entered the fake entries in revenue record and hence acquired
88-20 Acres of Forest Land through as a share, but shown purchased at the
meager rate of Rs.300000/- in total, though the Land’s per acre Produce Index
rate was 1200 per PI. Unit. Hence accused knowingly/intentionally took the
benefit against his committed act for illegal transfer of Forest land to Haji
Gahno Khan & others.
Ghulam
Mustafa Hulio
It
came on record that vide letter No.SOIV/(LG)/1-79/2012 dated 22.05.2012, a
report was called from Municipal Committee by Section Officer Local Government
regarding the recommendation of lease of Haji Gahno 10 years earlier but Ghulam
Mustafa Hulio vide letter No.LO/LMC/221 Dated: 16-07-2012 without furnishing
the real facts for not abiding the condition of the resolution passed by
council for applicant Haji Gahno to clear the arrears out standing against plot
but made recommendation in 2012 after 10 years on same rate, which were decided
in 2002 to favor the accused Haji Khan.
Nazir
Ahmed Shaikh
It
came on record that vide order of the Honorable High Court of Sindh Circuit
Court Larkana in C.P No: D-71 of 2000 on 25-10-2001 in which directions were
issued that matter should be heard a fresh regarding lease of plot bearing
Survey No. 1507/5A and orders passed in accordance with the law and also
directed to take a decision in this matter by virtue of Judgment given dated:
11-05-1999 within two months from that day. Compliance were to be reported to
the Additional Registrar of the Court. After the meeting of the committee (Anti
Encroachment and land control committee) was held on 10-12-2001 and also called
the parties and taken decision that above matter be produced before the Taluka
Council meeting such letter issued to the Additional Registrar High Court of
Sindh Circuit Court Larkana on 24-12-2001, then on 31-Jan-2002 Taluka council
meeting was held and passed the resolution that after recovering dues the lease
will be recommended but Nazir Ahmed Shaikh by misusing of his authority refer
the matter of Haji Gahno to Government of Sindh Local Government Department
Karachi for approval. On 21-10-2002 the letter of recommendation for grant of
the lease was written to the Secretary Local Government Public Health
Engineering and Kachi Abadi Department Government of Sindh Karachi for approval
of the lease.
However,
it is pertinent to mention that court orders were not that to grant lease to
Haji Gahno Khan but the directions were to deal the matter afresh whereas the
decision of council was to recommend the lease after recovering the dues but
contrary to that, lease for 99 years was recommended to benefit the accused
Haji Gahno Khan and hence accused Haji Gahno Khan is still taking the benefit
of the said property.
12. The contentions raised by learned counsel
for the petitioners require deeper appreciation of evidence, which is not
permissible at this stage. Learned Circuit Court Larkana in Civil Revision
No.27/2018 vide order dated 05.09.2019 dismissed Revision filed by Haji Gahno
Khan. It appears that Haji Gahno had filed Suit for Declaration to title
against Forest Department, it was decreed by Civil Court but dismissed by
appellate Court. Revision was dismissed by this Court. The material collected
during the investigation, prima facie, show that there are reasonable grounds
which lead to inference of the guilt of the petitioners and their involvement in
the commission of the offence, disentitling them to the concession of bail,
particularly, when there are serious allegations of causing huge loss to the
Government exchequer by misuse of authority and committing the offence of
“corruption”. As regards to the mala fide on the part of the NAB is concerned,
learned counsel for the petitioners who are present on interim pre-arrest bail
could not satisfy the Court that intended arrest on the part of the NAB is
calculated to humiliate them for the mala fide reasons.
13. Grant of
pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is
diversion of usual course of law. Concession
of pre-arrest bail cannot be allowed to an accused person unless the court felt
satisfied about seriousness of the accused's assertion regarding their intended
arrest being actuated by mala fide on the part of the complainant party or NAB
as held by Hon'ble Supreme Court in the case of Mukhtar Ahmad v. The
State and others (2016 SCMR 2064). Relevant portion of
the order is reproduced as under:
“ 2. …………………………We have gone through the reasons
prevailing with the High Court for admitting the said respondents to pre-arrest
bail and have found that the, said reasons do not commend themselves for
approval. The said respondents had been admitted to pre-arrest bail by the High
Court primarily upon the consideration that the offences allegedly committed by
them did not attract the prohibitory clause contained in subsection (1) of
section 497, Cr.P.C. The High Court had failed to appreciate that the said
consideration is hardly relevant to a case wherein what is sought is pre-arrest
bail which is an extraordinary concession. This Court has repeatedly declared
that the concession of pre-arrest bail cannot be allowed to an accused person
unless the court feels satisfied about seriousness of the accused person's
assertion regarding his intended arrest being actuated by mala fide on the part
of the complainant party or the local Police but not a word about this crucial
aspect of the matter is to be found in the impugned orders passed by the High
Court in the present case. It had also not been appreciated by the High Court
that an earlier petition filed by Asif Ali respondent before the High Court
seeking pre-arrest bail in the selfsame criminal case had been dismissed by the
said Court on account of absence of the said respondent despite being on
ad-interim pre-arrest bail. Such conduct displayed by the said respondent on
the earlier occasion ought to have, in the absence of any valid justification,
sufficed to disentitle him to an exercise of discretion in his favour in the
second round. The investigating officer present before the Court has informed
that during the investigation the allegations leveled against Tanveer and Asif
Ali respondents have been found to have been fully established. He has
maintained that the weapons of offence are yet to be recovered from the custody
of the said respondents and for that purpose physical custody of the
respondents is required by the local police.
3. For what has been discussed above these
petitions are converted into appeals and the same are allowed and,
consequently, the impugned orders passed by the High Court on 05.10.2015 and
14.10.2015 are set aside and pre-arrest bail allowed to Tanveer and Asif Ali
respondents by the High Court is cancelled. ”
14. In
the recent judgment in the case of Rana Abdul Khalig v. The
State and others (2019 SCMR 1129), following
observations have been made for grant of pre-arrest bail by Hon'ble Supreme
Court:
“ 2. Grant of
pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is
diversion of usual course of law, arrest in cognizable cases, a protection to the innocent being hounded on trump
up charges through abuse of process of law, therefore a petitioner
seeking judicial protection is required to reasonably demonstrate that intended
arrest is calculated to humiliate him with taints of mala fide; it is not a
substitute for post arrest bail in every run of the mill criminal case
as it seriously hampers the course of investigation. Ever since the advent of Hidayat
Ullah Khan's case (PLD 1949 Lahore 21), the principles of judicial
protection are being faithfully adhered to till date, therefore, grant of
pre-arrest bail essentially requires considerations of mala fide, ulterior
motive or abuse of process of law, situations wherein
Court must not hesitate to rescue innocent citizens; these considerations are
conspicuously missing in the present case. The case referred to by the
learned Judge-in-Chamber unambiguously re-affirms above judicial doctrine and
thus reliance being most inapt is unfortunate to say the least. ”
15. Hon'ble Supreme Court in the case of Rai
Muhammad Khan v. NAB through Chairman and others (2017 SCMR 1152)
has held that distinction is to be drawn between the ordinary criminal cases
and is of “corruption”. The introduction to the National Accountability
Ordinance elucidates that it has been enacted to “eradicate” “corruption” and
“corrupt practices” and hold accountable all those persons accused of such
practices. Therefore, prima facie, there appear reasonable grounds for
believing that petitioners have committed the alleged offence in which they are
facing the Reference before Accountability Court. Therefore, above Constitution Petitions filed by the petitioners named above for pre‑arrest
bail are dismissed. As regards the case of petitioner Haji Gahno
Khan Jatoi is concerned, there is sufficient material against him to connect
with the commission of offence. Mere old age without infirmity / serious
ailment is no ground for bail. At bail stage, Court has to tentatively form it’s opinion by assessing evidence available on record
without going into deep merits of the case. Ground of statutory delay for bail
is not available in NAB cases. Hence, Constitution Petition filed by
Haji Gahno Khan Jatoi for post arrest bail is also dismissed. Interim
pre-arrest bail already granted to the petitioners Shahid Iqbal Siyal,
Saeed Akbar Siyal, Meenhal Jatoi, Nazir Ahmed Shaikh and Ghulam Mustafa Hulio is
hereby recalled.
16. As the petitioners / accused have a right
of speedy trial, trial Court is directed to decide same positively within
four (04) months under intimation to this Court through Additional
Registrar of this Court. Both, the defence and prosecution, are directed to
cooperate with the trial Court and no unnecessary adjournment shall be allowed
by the trial Court to any of the parties.
17. Needless to mention that the observations
made hereinabove are tentative in nature and trial Court shall not be
influenced while deciding the case on merits.
__________________
J U D G E
__________________
J U D G E
N.M.