' SYED MEHMOOD ALAM, J.---Through this petition, petitioner seeks pre-arrest bail in Reference No,74 of 2007, pending before Administrative Judge, NAB has issued non-bailable warrants for the arrest of the petitioner on 11-12-2007.
2. Originally SIP Hameedullah Khan of ACE, Karachi lodged the F.I.R. Nos.67 of 2007 under sections 161/217/ 420/468/471/109/34, P.P.C. Read with section 5(2) Act-II, 1947 at ACE, Karachi into Complaint No,198 of 2007, which was subsequently transferred under section 16-A of National Accountability Ordinance, 1999 converted into Reference No,74 of 2007.
3. The instant case is registered as a result of enquiry conducted into Complaint No,198 of 2007 of ACE, Karachi, with the allegation that land grabber Muhammad Saad, Nooruddin and others with the active connivance of Revenue Staff, Gulshan Town, Karachi managed and kept fake/false entries in the old records of rights i.e, Registrar-V/F-VII, Deh Safooran, Gulshan Town, Karachi. As a result, different properties of the Government were transferred/mutated to different persons illegally and after manipulation.
4. Mr. Muhammad Ashraf Qazi contends that after registration of the above F.I.R., challan has been submitted on 16-8-2007 before Special Court for Anti-Corruption (Provincial) at Karachi. No process was served upon the petitioner and till 11-10-2007 the petitioner was posted as Recovery Mukhtiarkar, SME Bank Karachi. Meanwhile co-accused Zafar Baloch, Mukhtar Ahmed and Allah Rakhio Sypio were granted bail before arrest and after arrest in the above case by this Court bearing Criminal Bail Application Nos.833, 793 and 936 of 2007 respectively.
5. That earlier the petitioner appeared before Special Judge, Anti, Corruption for pre-arrest bail but the same was dismissed for non prosecution on 22-8-2007 due to sudden death of the petitioner's mother. That on 14-11-2007, the above case was received by the NAB Court by way of transfer under section 16(A) of the NAB Ordinance and consequently, Non-Bailable Warrants were issued on 11-12- 2007. As a result of such Non-Bailable Warrants, the petitioner surrendered himself before this Court on 17-12-2007 and by order dated 18-12-2007, interim pre-arrest bail was granted to him. Mr. Qazi further contends that main allegation in the reference against the petitioner regarding Entry Nos.123 to 126, dated 29-4-2004 and transfer of the Na-class land to different persons. He contends that on the sale-deed bearing Nos.25, 26, 28 and 29 dated 20-3-2004 being received from the DDO, Revenue namely Rasool Bux, the petitioner sent a letter dated 20-4-2004 for verification of the said sale-deeds to the Sub-Registrar, Agricultural Land, East, Karachi and on 22-4-2004 he received a written reply to the above reference with the remarks that attached documents were genuine and correct as per record of that Office. As a result, the petitioner sent the above sale-deeds of the Sub-Registrar to the Assistant Mukhtiarkar namely Qurban Ali Endhar, and thereafter the Assistant Mukhtiarkar after scrutinizing the case, submitted an official note with full facts, dated 29-4-2004, the DDO (Revenue), Gulshan-eIqbal, Karachi, through the petitioner, for soliciting the orders of the DDO as to whether on the basis of Registered sale-deeds mutation entries may be made, or otherwise. The DDO (Revenue) passed the following orders:-- ' "Please keep the entries in record of Lights on the basis of registered sale-deeds as mentioned above."
' Hence the petitioner after observing all codal formalities, made the entries in the record of rights at the aforementioned serial.
6. Mr. Qazi further contends that the allegation of misplace of original register is also false and fabricated as the Register was not in the custody of the same and as per documentary evidence, it was in the personal custody of the DDO (Revenue).
7. Mr. Qazi further contends that no allegation is found in the F.I.R. Regarding the petitioner having made any financial gain for himself or for his family. In contradiction, he contends, the petitioner has performed his duties as per law. He further contends that the petitioner acted as per the relevant provisions of sections 42(6) and 52, of the Land Revenue Act, 1967 and rule 9 of the Land Revenue Rules, 1968. He has relied upon the following cases:--
(i) Choudhry Shujjat Hussain v. The State 1995 SCM R 1249,
(ii) Hisamuddin v. The State (Bail Application No,181 of 1999),
(iii) Saeed Ahmed v. The State 1994 SCMR 170,
(iv) Saeed Ahmed v. The State 1996 SCM R 1132,
(v) Agha Talat Mehmood v. The State 1983 PCr.LJ 2144,
(vi) Murad Khan v. Fauzia Subhan and others PLD 1983 SC 82,
(vii) Jamalauddin v. The State 1985 SCM R 1949,
(viii) Miran Bux v. The State PLD 1989 SC 347 and
(ix) Abdul Aziz Niazi v. NAB PLD 2003 SC 668.
8. He further contends that the petitioner has been implicated in the above case malafidely and with ulterior motives though no evidence was available against the petitioner and prima facie, no case is made out against the petitioner. Therefore, he was entitled to pre-arrest bail.
9. In the morning the learned APGA, NAB, namely Mr. Muhammad Ali Lari and Mr. Asif Rasheed, Advocates were present prior to the calling of the case but left the Court without any intimation, and it has been observed that the Law Officers of the NAB are not properly assisting this Court.
Nevertheless, we have gone through the comments filed by the NAB, which is the toto of contents of the F.I.R.
10. In reply to the parawise comments filed by the respondent, the petitioner filed his rejoinder-in- affidavit, which consists of the same facts as argued by Mr. Qazi, learned counsel for the petitioner, as mentioned above. Mr. Qazi further contends that the prosecution case has been made on the basis of pick and choose, as the DDO (Revenue), Assistant Mukhtiarkar, Qurban Ali Endhar, Tapedar Abdul Aziz Qazi have not been made co-accused in the instant case, which clearly shows discrimination. Hence benefit of the doubt should be allowed to the petitioner as his case is at a better footing than the above persons and Mr. Qazi has relied upon the case of Dr. Allah Nawaz A.
Qazi v. The State 2008 SCM R 196.
11. We have heard the learned counsel for the petitioner and perused the record as well as the parawise comments filed by the NAB. It is prima facie established, that the petitioner, prior to making entries in the register, had sent the letters for verification, and only after verification, he had made the subject entries, which fact is also supported by the letter annexed with the Rejoinder as Annexures "A", "B" & "C". It is also strange that the persons with specific role regarding verification of impugned documents have been exonerated. Which is a discrimination on the part of the prosecution.
12. That although prima facie. Mr. Qazi, through above mentioned Annexures, established that the petitioner has not made any illegality and that he should have been exonerated like the other too, nevertheless, the factor regarding involvement of the petitioner can only be assessed after recording of the evidence of the prosecution. At this stage, without deeply scrutinizing the evidence, which is yet to be recorded by the learned trial Court, it cannot be ascertained at this stage, as to whether the allegations are without any foundation or not. Even as per F.I.R., the petitioner has not been shown as the beneficiary in the alleged offence. On the basis of tentative assessm ent of the material on record, we are of the view that the petitioner has made out a case of pre-arrest bail. As a result, this petition is admitted and the petitioner is entitled for pre-arrest bail.
13. On 14-4-2008, we had passed the following short order:- ' "For the reasons to be recorded later, on the basis of consistency with C.P. No,793 of 2007 (Mukhtiar Ahmed Qureshi v. The NAB), the interim pre-arrest bail, earlier granted to petitioner is hereby confirmed on the same terms and conditions, accordingly C.P. No,2483 of 2007 is disposed of."
14. These are the reasons of our above short order, Pre-arrest .