IN THE HIGH COURT OF SINDH, KARACHI
C.P.No.D-73 of 2015
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Order with signature of Judge
Present: Mr.Justice Muhammad Ali Mazhar
Mr.Justice Shaukat Ali Memon
Rafiq Haji Usman …………………………….Petitioner
Versus
The Chairman NAB
& others……………………………………………Respondents
Date of hearing 11.02.2015
M/s. Farooq H. Naek, Awais Ahmed and Asadullah Channa Advocates for the Petitioner.
M/s.Noman Jamali and Jamal Ahmed Mufti Advocates for the affected Allottees
Mr.Muhammad Riaz, ADPG NAB
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Muhammad Ali Mazhar-J: This constitution petition is brought to seek out post arrest bail in the NAB Reference No.20/2014 filed by the Director General NAB against the petitioner and other accused persons.
2. The brief facts of the case are that on 20.11.2013 Director General NAB issued warrant of arrest of the petitioner. On 10.10.2014, the petitioner was arrested on account of allegations of cheating public at large by not handing over the possession of flats/shops to the allottees who had booked flats/shops in “Silver Sand Project”. The petitioner had earlier filed a Constitution Petition No.D-5226 of 2014 in this court for challenging his warrant of arrest and bail but his petition was dismissed with the observation that the petitioner may repeat the petition for bail after completion of investigation and filing of reference. The petitioner filed a Civil Petition for Leave to Appeal No.403-K/2014 in the Supreme Court on 6.12.2014. In the meantime NAB filed Reference No. 20 of 2014 (State v. Sikandar Abdul Karim & others) therefore, the petitioner withdrew the Civil Petition from Supreme Court on 30.12.2014 and filed this petition again in accordance with the observation made by this court in the order of C.P.No.D-5226/2014.
3. The learned counsel for the petitioner argued that the petitioner has not committed any offence under NAO 1999 therefore his arrest is illegal. The petitioner has been implicated in the Reference for causing unjustified harassment and with the sole aim to appease the alleged affected allottees. Out of almost 600 residential flats/units, only 22 persons have lodged complaints. Three allottees have settled their claims while the allotment of four units was cancelled for non-payment of dues and matter is pending in the civil court. He further argued that the petitioner had no concern with the receipt of amount from allottees on behalf of Beach Developers. He did not commit any offence which might come within the ambit of Section 415 PPC. So called withdrawal took place in the year 2011-2012 and this amount too was not deposited by any allottees but remitted from abroad. The petitioner had nothing to do with receipt of funds, booking and handing over of the possession of flats/shops to the allottees. The possession could not be handed over due to a dispute between Beach Developers and Defence Housing Authority. A Constitution Petition No.2563/2013 (M/s Beach Developers and others versus Federation of Pakistan and others) is pending adjudication in this court. It was further contended that warrant of arrest was issued by Director General Sindh NAB who has no power to issue warrant of arrest under Section 24 of NAB Ordinance, 1999 so also the Reference has been filed by Director General, NAB, Sindh (respondent NO.2) who has no powers to file the reference under NAO 1999.
4. The learned counsel further argued that the petitioner was never appointed by Sikander A. Karim as his attorney in connection with the business of Beach Developers rather Beach Developers had appointed Muhammad Asif, as their attorney in 2010. This is a matter of civil dispute between the alleged allottees of flats/shops and the owners of the Silver Sand Project which can only be resolved through civil court. The case is based on documentary evidence and if bail is granted there would be no question of tampering of the documentary evidence by the petitioner. The petitioner has already been remanded to Judicial Custody and no more required for investigation by NAB authorities. If the petitioner is acquitted of the charges then the period spent in the jail can never be compensated and will result grave miscarriage of justice. The petitioner is ready and willing to submit surety to the satisfaction of this court. The learned counsel relied upon the following case law:-
(1) 2008 SCMR 807 (Haji Muhammad Nazir & others v. The State). Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he is required to be produced.
(2) PLD 1996 S.C. 241 (Syed Amanullah Shah v. The State & another). Section 497 Penal Code (XLV of 1860) Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial.
(3) PLD 2002 S.C. 572 (Ch. Tanveer Khan v. Chairman, National Accountability Bureau & others). Section 497. Prosecution in order to make out a case for refusal of bail to an accused is primarily supposed to place on record material on basis of which he is believed to be involved in a non-bailable offence, but in absence of such material the court for the purpose of releasing the accused on bail, instead of dilating upon the facts of the case in details, can dispose of the matter by holding that his detention is unjustified or unreasonable.
5. The learned ADPG NAB argued that petition is not maintainable as the previous petition on similar grounds was dismissed by this court. All the facts and grounds are similar which have already been dealt with and attained finality and no fresh ground is available to the petitioner for the grant of bail. Although the petitioner was allowed to file fresh bail application after completion of investigation and filing of reference against but the case of the prosecution has now further improved. The petitioner is involved in an offence punishable under the provisions of NAO, 1999 and sufficient incriminating material is available against him. Not a single allottee/affectee has been given possession out of almost 600 flats since 1992. So far as competency or authority of issuing warrant of arrest or filing the reference in the Accountability Court is concerned, the learned ADPG referred to SRO No.1033(I)/2002 which was issued under Section 34-A of NAO, 1999 whereby Chairman NAB delegated his powers of Section 18 (e) to the D.G. Operations NAB H.Q. and D.Gs Regional NABs while the powers of Section 18 (g) and 24 (b) were delegated to the D.G. Operations NAB H.Q. and the D.Gs Regional NABs. No rebuttal was made by the learned counsel for the petitioner to the validity of Notification whereby the powers were delegated by the Chairman NAB.
6. The learned counsel for the affected allottees were provided opportunity of hearing in earlier CP.No.D-5226/2014 so they have again filed applications and requested that they may be allowed right of audience for assisting the prosecution. They also relied on the judgment of this court reported in PLD 2013 Sindh 357. Since they were allowed right of audience earlier in CP.No.D-5226/2014 hence we again allowed them to assist the prosecution in second bail petition. The learned counsel argued that earlier this court has already discussed all incriminating material against the petitioner. They reiterated that the petitioner in the capacity of chief executive signed the addendum agreements. He also received the installments in the absence of his brother and looking after the affairs of beach developers and the project. The statements recorded under Section 161 Cr.P.C. showing clear involvement of the petitioner. The petitioner induced the members of the public at large that they will be given possession of their flats/shops but despite making payments they are deprived. The learned counsel also referred to copy of C.P.No.D-2563/2013 filed by Beach Developers against the Director General NAB and Administrator D.H.A. and argued that in paragraph 7 of the petition it was asserted that 90% of the allottees has already taken over the possession of the shops and apartments while in ground (J) of the present petition it has been stated by the petitioner that the possession of flats could not be handed over to the allottees due to dispute between Beach Developers and Defence Housing Authority. He further argued that the special power of attorney executed by the partners of the Beach Developers in favour of Muhammad Asif was only confined the powers to represent the firm and the partners in courts. It is evident from the powers enumerated in the indenture of power of attorney that Muhammad Asif was never allowed to run the business of the firm or to look after the project in question. The learned counsel for the allottees relied upon the following case law:-
PLD 1986 S.C. 173 (The State v. Zubair & others). It might be useful to mention here that the second or the sub-sequent bail application to the same court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application.
7. Heard the arguments. The same petitioner earlier filed C.P.No.D-5226/2014 and applied for bail but at that time the matter was at investigation stage, the petitioner was on remand and no reference was filed. However, the court considered the incriminating material and the petition was dismissed and the order was authored by one of us (Muhammad Ali Mazhar-J). However, it was observed in the order that the petitioner may repeat the bail petition after completion of investigation and filing of reference by the NAB authorities. Since we refused to grant bail while the petitioner was on remand and no reference was filed therefore, the petitioner had also applied for bail in the hon’ble Supreme Court of Pakistan through Civil Petition for Leave to Appeal No.403-K of 2014. The counsel for the petitioner pointed out an excerpt from the earlier order dismissing the petition by this court to the honourable Supreme Court which caused the petitioner considerable concern. The relevant excerpt is reproduced as under:-
“It is also a fact that the petitioner is still on remand so in all conscience neither any reasonable ground exists that the petitioner is not connected with the offence in question nor we feel any improbability of conviction on the basis of material collected by the prosecution against the petitioner.
Prima facie, sufficient documentary evidence has been collected up till now to connect him with case.”
However, vide order dated 30.12.2014, the hon’ble Supreme Court disposed of the petition with the following observation:-
“4. In the circumstances, we would dispose of this petition by observing that the above reproduced portion of the judgment as well as any other portion thereof shall not at all prejudice the case of either party before the learned Accountability Court. In any event the impugned judgment is basically is a bail order and it is well settled that at this stage only a tentative assessment of evidence is to be made without going deeply into the facts as well as circumstances of the case.”
8. It is evident from the observation made by the hon’ble Supreme Court that the reproduced portion of the judgment as well as any other portion thereof shall not at all prejudice the case of either party before the learned Accountability Court. It is also matter of record that while dismissing the earlier petition, in fact this court observed that the petitioner may repeat bail petition after completion of investigation and filing of reference by the NAB authorities which right has been exercised by the petitioner after filing reference which right is independent of the observation made by hon’ble Supreme Court. It is also well settled that findings at bail stage is always tentative in nature however, there is no cavil to the proposition that at the time of deciding petition for bail, the court has to consider incriminating material produced by the prosecution and especially in white collar crimes and the prosecution in NAB cases, mostly the case is based on the documentary evidence so the court cannot hoodwink or avoid the perusal of the material produced by the prosecution which is in fact crucial and decisive factor for the court to hold whether the petitioner is entitled for the grant of bail or not. In paragraph (3) of the reference the prosecution has mentioned the names of (22) allottees in a table and stated that approximate market value of 600 units is calculated at Rs.9,485,900,000/-. So far as (22) claimants who have lodged their actual claims come to the tune of Rs.43,970,975/- but this amount has also been converted into present market value which comes to Rs.700,670,000/- on the basis of report of Mukhtiarkar concerned.
9. The counsel for NAB and allottees argued that the material collected by the prosecution is suffice to show even at this stage that the petitioner is involved in the case and he was performing and acting as a front man of his brother Sikandar Karim. The learned counsel for the petitioner did not controvert the material produced by the prosecution nor raised any fresh ground; however he argued that a sum of Rs.11 million withdrawn by the petitioner from the account of Beach Developers had nothing to do with the amount deposited by the allottees but it was remitted from abroad. He further argued that most of the allottees have settled their matter but failed to confront the list of affected allottees mentioned in the reference in a separate table showing the amount deposited by them.
10. The prosecution has produced a list of 48 prosecution witnesses. Prosecution witnesses namely, Muhammad Salman Rehman, Badar-un-Nisa, Manzoor Hussain, Muhammad Arshad, Farhad Mistry, Islamuddin Siddiqui, Kausar Parveen, Dawood Habib, Abdul Jalil and Hameed Mirza in their statement clearly implicated the petitioner that he received the amount, he was acting as a front man of his brother Sikandar Abdul Karim and he also assured that the project will be completed soon and the possession will be handed over to the allottees. It is further stated in one of the statement that he introduced himself as one of the partners of the beach developers. In the reference besides the petitioner three more accused persons namely, Sikandar Abdul Karim, Nilofar Sikandar and Mst.Makia have been nominated as partners of beach developers but the petitioner has been nominated as a front man. The project was started in the year 1992 and the possession was to be given within 40 months from the date of booking. Despite lapse of 22 years the project is still incomplete for the reasons that the Beach Developers have committed serious violation of byelaws by constructing excessive height of building, mezzanine floor and basement. They have constructed additional floor hence DHA did not execute the “C” lease of the building. The learned counsel for the petitioner pointed out an agreement dated 22.10.2004 which is available at page 323 of the court file to show that the beach developers agreed to pay composition fee and the penalties to DHA against certain violations of the approved building plan and the amount of penalties and the nature of violations are mentioned in paragraph 7 to 9 of the agreement. It is a matter of record that despite entering into agreement in the year 2004 still the project is in limbo and the possession was not handed over to the allottees. It is also a fact that in C.P.No.D-2563/2013, the partners of the beach developers prayed to this court that the Director General NAB be restrained from harassing the petitioner and be also refrained from continuing investigation against the petitioner. A prayer was also made against the DHA to issue completion certificate and execute “C” lease. On one hand it was admitted that “C” lease was not issued while in paragraph 7 of the same petition it was stated that 90% allottees have taken the possession of their shops and apartments while in ground (J) of the present petition the petitioner has stated that the possession of the flats could not be handed over to the allottees due to the dispute between beach developers and DHA. Even in the earlier C.P.No.D-5226/2014 in paragraph 6 it was stated by the same petitioner that from October, 2004 till to date certain work required to be done by DHA before which the properties cannot be handed over by the beach developers.
11. Sub-clause (ix) of Clause (a) of Section 9 of NAO, 1999 germane to an offence of cheating as defined under Section 415 PPC. If a person dishonestly induces members of the public at large to deliver any property including money of valuable security to any person is an offence. The prosecution referred to incriminating material such as Account opening form of the Beach Developers in Metropolitan Bank Ltd. dated 09.02.2002. Letter of mandate duly signed by all the partners whereby the signing mandate/authority was given to the petitioner for operating the bank account. Letter dated 22.12.2012 written by the petitioner to the Director General NAB for the details. This letter was written by the petitioner on the letter head of Silver Sands Ocean Beach Apartments. Copy of visiting card of the petitioner in which he has been shown as Chief Executive of Silver Sands Ocean Beach Shopping Mall and Apartments. The prosecution has produced the hand writing expert report dated 5.11.2014 (Issued from the office of A.I.G Police, Forensic Division, Sindh, Karachi) to show that the signature of petitioner was found matched on various documents signed by him. Minutes of meeting dated 09th July, 1992 held at site office of Beach Developers attended by the petitioner and Muhammad Iqbal Memon, Vino Advani, Sikandar Abdul Karim and Younus Rehmatullah in which it was decided that the Finance and Recovery will be handled by the petitioner. Terms and conditions of addendum No.1 dated 15.5.2000 which was signed by the petitioner as Chief Executive. Copies of 11 cheques issued in the year 2011-2012 to show that a sum of Rs.11 million was transferred from the account of Beach Developers in the personal account of the petitioner. The statements of the prosecution witnesses recorded under Section 161 Cr.P.C. who have also implicated the petitioner being front man of the project in question. Prosecution has also produced copy of general power of attorney executed by Sikandar Abdul Karim in favour of the petitioner.
12. Though the petitioner is not partner in the firm but at the same time it cannot be ignored that the material produced by the prosecution sufficiently demonstrates that the petitioner was involved in the affairs of the project. Since 1992, the project is incomplete. Various violation of the approved building plan has been committed. Despite agreement with D.H.A, penalty and composition fee has not been paid for regularization even then the counsel for the petitioner argued that no case of cheating is made out and recourse should have been achieved through civil court and not by prosecution. According to the prosecution, the partners of the firm nominated in the reference are out of Pakistan and the only person available to answer the charge is the petitioner who is in custody. Due to delay in completion of project, a large segment of public is affected but the counsel argued that only 22 persons approached the NAB. Whether the other allottees have been given possession and they are satisfied? The answer is in negative as the petitioner not only in this petition but in earlier one also accepted that possession has not been given to the allottees and belied the assertion of partners of the firm made in CP.NO.D-2563/2013 that 90% allottees had already taken possession.
13. According to dicta laid down in the precedents quoted by the learned counsel supra no doubt that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties but for exercising the discretion of bail, the court has to consider tentatively the material placed by the prosecution showing the involvement of the petitioner. It is also well settled that whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail but in the case in hand, the counsel for the petitioner did not add any new ground for seeking bail after filing reference and the material produced by the prosecution cannot be washed out. The prosecution in order to make out a case for refusal of bail to an accused is primarily supposed to place on record material on basis of which he is believed to be involved in a non-bailable offence. No reasonable ground exists at this stage to hold that the petitioner is not involved in the crime in question.
14. As a result of above discussion, this Constitution Petition is dismissed. The above findings are tentative in nature and shall not prejudice the case of either party in the Accountability Court.
Karachi: Judge
Dated.2.3.2015 Judge