ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-1282 OF 2014

DATE ORDER WITH SIGNATURE OF JUDGE

Present: Mr.Justice Muhammad Ali Mazhar

Mr.Justice Shahnawaz Tariq

Abdul Jabbar ……………………………………………Petitioner

Versus

The State (NAB)……………………………………….Respondent

Date of hearing: 23^rd July 2014

Mr. Munawar Hussain Yousufi Advocate for the Petitioner

Mr. Noor Mohammad Dayo A.D.P.G. NAB

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Muhammad Ali Mazhar J. The petitioner has applied for post arrest bail in Reference No.62/2013 in which he has been nominated as accused No.3. The role of the present petitioner is mentioned in Paragraph No.6 of the Reference which reads as under:-

“6.That it reveals from Investigation Report that Ali Akbar Parhyar Ex-Mukhtiarkar and Abdul Jabbar Soomro Ex-Tapedar accused No.2 and 3 respectively despite being within knowledge that the land involved is government land still confirmed Entry NO.154 dated 12^th January, 2005 which was made on the basis of the aforesaid fraudulent Sale Deed executed by accused No.5 in favour of accused No.4. Both the accused without comparing the new entry with the previous one and without referring the previous entry made new one in favour of accused No.4. the proprietor M/s Terry World Textile Mills and thus completely neglected the requisite legal and procedural formalities.”

2. In paragraph No.7, it is further stated that after conducting investigation, it has been established that all the accused persons in collusion with each other committed the offence of corruption and corrupt practices and caused loss of Rs.9.5 million to the national exchequer by grabbing precious government land and by manipulation and fabrication of documents and by over writing and tempering the record and further by removing and inserting pages in the relevant record, made new entries in record of rights in respect of 237 acres of land in Deh Babar Band, Taluka Thana Bola Khan, District Jamshoro. Thus the accused persons committed the offence of corruption and corrupt practices as envisaged under Section 9 (a) of NAB Ordinance 1999.

3. The learned counsel for the petitioner argued that out of six accused, five are already on interim bail except the petitioner. He further argued that the accused No.1 issued the sale certificate in favour of accused No.5 on the basis of old entry which was kept by Allah Dito Leghari, Ex-Mukhtiarkar, hence the Entry No.77, dated 20.10.1989 was kept in the Form-VF-II.A. He further argued that after issuance of sale certificate, the sale deed was registered in favour of accused No.4 by the Sub-Registrar. He further argued that the petitioner was duty bound to keep the entry on the record passed by his superiors and he had no authority to refuse to keep the entry on record without the order of Mukhtiarkar. He further argued that the alleged offence was committed in the year 2004-2005 but the reference has been filed in the year 2013 after an inordinate and unjustified delay which creates doubt and in view thereof, the role of the petitioner requires further inquiry. He further argued that petitioner is behind the bar for the last eight months who was arrested on 30.11.2013. Now investigation has been completed, charge has been framed by the trial court but out of seventeen witnesses, the examination in chief of only one witness has been recorded so far on 29.05.2014. There is no likelihood of completion of trial in the near future. In support of his arguments, the learned counsel for the petitioners placed his reliance on 2005 S.C.M.R 1666 (Agha Jahanzeb V.S NAB and others) in which also the post arrest bail was applied. In paragraph No.05, it was held as under:-

“5.When questioned that under the NAB Ordinance trial is to conclude within 30 days. Mr. M. Ibrahim Satti, Advocate Supreme Court submitted that this time period is not mandatory but directory for the time being we would refrain from expressing any opinion as to whether the timeframe is mandatory or directory, but would direct that after submission of challan in this case on 7^th of May, 2003 if the trial does not commence or conclude within 30 days from the said date, petitioner would automatically become entitled to the grant of bail subject to his furnishing bail bonds in the sum of Rs.five millions with one surety in the like amount to the satisfaction of the trial Court at Lahore.”

4. In the above order, the bail was granted by the honourable Supreme Court on the premise that after submission of challan if the trial does not commence or conclude within 30 days from the said date, the petitioner would automatically become entitled to the grant of bail subject to his furnishing bail bonds in the sum of rupees five million with one surety in the like amount to the satisfaction of the trial Court. Learned counsel submits that since the reference was filed on 12.11.2013 and till today, only examination in chief of one witness has been recorded so he argued that the petitioner may be enlarged on bail subject to his furnishing solvent surety. He further referred to 2002 SCMR 282 (Muhammad Saeed Mehdi v. The State) in which, the honourable Supreme Court dilated upon the preamble of the NAB Ordinance and Section 16 of the said Ordinance and held that object of the Ordinance as contained in its preamble is to provide expeditious trial of scheduled offences within shortest possible time, which position is re-assured in Section 16 of the said Ordinance postulating day to day trial of the case and its conclusion within 30 days. It was further held that object of criminal trial is to make the accused face the trial and not punish an under trial prisoner for the offence alleged against him. Basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

5. On the contrary, the learned A.D.P.G NAB argued that the petitioner being Tapedar of Revenue played an important role in the commission of offence and without his participation; commission of offence was not possible. He further argued that petitioner is prima facie involved in the offence of corruption and corrupt practices. However, he himself produced the diary sheet of the learned trial court which confirms the fact that the examination in chief of only one witness has been recorded on 29.5.2014. The learned A.D.P.G N.A.B has also pointed out the 161 Cr.P.C statement of Abdul Hameed in which he stated that entry No.154 was made by the accused Abdul Jabbar (petitioner) who was Ex-Tapedar which was attested by the accused Javed Akhtar Ex-Mukhtiarkar of Thana Bola Khan. However, in his same statement, he stated that the entry No.77 was already existing on the record in the name of Mst.Sabiha who sold out the property to M/s. Terry World Textile Mills. The next witness in his statement stated that sale permission/N.O.C for sale dated 16.12.2004 was signed by the accused Asadullah Solangi Incharge/ Mukhtiarkar Revenue. Ramesh Kumar in his statement stated that as per record, the conveyance deed dated 31.12.2004 was executed between Mst. Sabiha and Mehmood Rangoon Wala regarding 237 acres of government land situated in Deh Babar Band, Taluka Thana Bola Khan, District Jamshoro which was registered in the office of Sub-Registrar Kotri. The learned A.D.P.G NAB further submits that Mst. Sabiha who is accused No.5 has filed an application for “Plea Bargain” which is pending. In support of his contentions, the learned A.D.P.G NAB relied upon the 2004 S.C.M.R 1889, (Mrs.Razia Qayyum vs. The State) in which, the honourable Supreme Court held that elaborate sifting of evidence could not be made at the time of deciding bail application but only tentative assessment of the same is to be made.

6. What we understand from the record is that though the allegation against the present petitioner is that he in connivance with other official recorded Entry No.154 dated 12^th January 2005 but at the same time, an important aspect cannot be ignored that in the name of same Mst. Sabiha, an entry No.77 was already existing on the record. Except accused No.4 & 5, all the other co-accused are the Revenue Officials so at this stage it is not clear whether all the officials of the Revenue Department in connivance with each other caused loss to the national exchequer. It is also to be seen whether the present petitioner in connivance with other co-accused fraudulently recorded an entry No.154? Whether in presence of entry No.77 in the name of Mst. Sabiha, the petitioner was required to examine entire chain of the title documents of the land? The effect of the sale certificate/N.O.C for sale which was issued by the Ex-Mukhtiarkar and on the basis of the said sale certificate, Conveyance Deed was registered. All these crucial questions are need to be thrashed out during course of evidence. So according to our tentative assessment in view of the available record, the role assigned to the petitioner requires further inquiry who is behind the bar for the last more than eight months and in the trial court only examination in chief of one witness has been recoded so far. It is clear that allegation can only be determined at the conclusion of the trial, where deeper appreciation of evidence will be made out whether the petitioner is involved in the case or not. The allegations by themselves would not constitute bar for the grant of bail in peculiar circumstances of the case. In the case of Sardar Amin Farooqui (2014 SBLR 766), authored by one of us (Muhammad Ali Mazhar-J), it was held that the further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. Object of trial is to make an accused to face the trial and not to punish and under trial prisoner. The hon’ble Supreme Court held supra that basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

7. As result of above discussion, the petitioner is granted bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lacs) and P.R bond in the like amount to the satisfaction of learned trial court. The observations made by us are tentative in nature. Petition disposed of.

Judge