1. ' TUFAIL H. EBRAHIM, J.---Brief facts of the case as per available record are that petitioner was required by the office of respondent No,2 vide letter dated 25-8-2010 to appear before respondent No,1 on 2-9-2010 at 1000 hours to record his plea pertaining to allegations levelled against him and housing scheme of Humair Associates (Pvt.) Ltd., known as "Sachal Sarmast Town". The petitioner along with one Syed. Wajahat Abbas appeared before respondent No,1 and various documents were, provided vide letter dated 7-9-2010. The petitioner was once again called by respondent No,1 on 21-10-2010; accordingly petitioner attended his office at 11-00 a.m. And on which date the respondent No,1 without showing any cause and reason has detained the petitioner and consequently shown arrested at 1510 hours on the same date leading to the filing of this Constitution Petition by the petitioner on 25-10-2010 with the prayer to enlarge him on bail till final disposal of the case and/or any other relief may also be granted as deemed fit and proper in the circumstances.
2. ' The grounds of arrest as shown were that the petitioner being the Managing Director of Messrs Humair Associates (Pvt.) Ltd., who in the year, 1980 initiated a housing project in the name of "Sachal Sarmast Town" on a land bearing Survey Nos. 67, 68, 85, 160, 83 part, 84 part, Deh Dozan, Taluka and District East Karachi, now district Malir, on land measuring 114 acres; that the petitioner has received millions of A Rupees from the allottees of the said house project, but has failed to hand over the physical possession of plots to the allottees and as such the petitioner has committed the offence of cheating public at large, which is violative of section 9(a)(ix) of the National Accountability Ordinance, 1999.
3. ' The petitioner was produced by respondent No,1 on 22-10-2010 before the learned Administrative Judge of Accountability Courts, Karachi Sindh in order to get remand of the petitioner, wherein it was alleged that 59 affectees have paid the full amount for the plots but they have not provided physical possession etc. Once again the remand from 6-11-2010 to 13-11-2010 was extended by the Administrative Judge of Accountability Courts, Karachi Sindh vide order dated 5-11-2010 and thereafter for a period w.e.f, 14-11-2010 to 22-11-2010 further remand of the petitioner was extended by the said Court vide order dated 13-11-2010. Thereafter, once again request was submitted for further 15 days remand of the petitioner from 23-11-2010 on the grounds that during the last remand period a plea-bargain application submitted by the petitioner was rejected by the competent authority. The said Court has extended the remand of petitioner till 27-11-2010 and thereafter the petitioner was remanded to judicial custody till submission of the challan by the I.O. - ' Learned counsel for the petitioner has argued that the petitioner has been falsely implicated for ulterior motives and to humiliate him in public and in business community. It was contended that no cheating or fraud has been committed by the petitioner and/or his company. The land is available and the petitioner's company had started development work and was always ready and willing to hand over the physical possession to the allottees subject to payment of all due instalments and Government dues which have been charged/demanded by the Government and local Government from time to time. Per learned counsel due the location of the land, political unrest and deteriorating law and order situation in the eighties and nineties, the allottees lost interest and started defaulting in payment of instalments, resulting in the delay in the development work and the Government as well as Local Authorities started demanding increased amounts towards outer development charges and additional taxes for which the petitioner's company has also filed suit against Malir Cantonment Board and another which is pending adjudication before the High Court. Per learned counsel the project of the petitioner was situated outskirts of Karachi and the allottees were not ready and willing to take possession and even the utility departments failed to provide the utilities in accordance with law. Per learned counsel all the development has been completed and over the years due to refusal on the part of the allottees to pay the balance instalments, Government dues and to take possession, the petitioner's company had to pay millions of rupees to the relevant authorities as to removal of encroachment etc. Per learned counsel the development work already done in the eighties and nineties, had started decaying and deteriorating due to non-occupation of the plots by the allottees.
4. ' The learned counsel has argued that out of more than 2000 allottees only 59 allottees for mala fide and ulterior reasons have made complaints to the Government Authorities. Their plots have been cancelled in a lawful manner for non-payment of instalments and/or legal dues after notice to them. Per learned counsel the land is available for allotment and/or possession and have not been sold or transferred by the petitioner's company has not been wounded up and is doing its business and all books of accounts are properly maintained. Per learned counsel all the relevant documents irr the relation to the said project have been provided to respondents. Per learned counsel sufficient documentary evidence is available to show that the petitioner's company had time and again requested the allottees to take possession of their plots after payment of instalments and legal dues. The learned counsel has vehemently argued that the petitioner is an old person and is a chronic patient of high blood pressure, uncontrolled hypertension and unstable angina and for which he is required to take periodical medical checkups and since custody his health has been seriously affected and if immediate remedial measures are not taken, the petitioner's health and life will be in danger. Learned counsel has further argued that arrest of the applicant is motivated as in-another housing project of the petitioner's company similar allegations had been made and a settlement had been arrived on the basis of an undertaking given by the petitioner to NAB against which civil suit is pending in the High Court. The learned counsel in support of his contentions has relied on the following reported cases: ' In case of Begum Riffat Ahad v. NAB through Chairman and .4 others reported in 2003 PCr.LJ 87, it has been held as under :- "The National Accountability Bureau has not challenged the factum of ailment of petitioner's husband either before the Accountability Court or before this Court in these proceedings. On a specific query made by the Court as to why the custody of the detenue (petitioner's husband) is required, the learned Deputy Prosecutor-General submitted that he had secured loan on insufficient securities and the Inquiry Officer would like to lay his hands on those documents for completion of reference. Para 4. Of the application filed by the Punjab Cooperative Board for Liquidation before the learned Cooperative Judge of this Court, clearly shows that the Board is in full knowledge of all the documents on the basis of which the loan was secured. However, notwithstanding this, the inquiry officer can always associate the detenu (petitioner's husband) in any inquiry or investigation. The learned Deputy Prosecutor-General NAB did not apprise this Court of any outstanding amount to be recovered from him. No useful purpose would be served for keeping the petitioner's husband in detention any further."
5. ' In case of Saif Ali Zardari v. Federation of Pakistan through Secretary Interior, Islamabad and another reported in 2005 SCM R 422, it has been held as under:-- "Prima facie, there is no evidence worth relying and the evidence so collected is not enough to decline the bail. Intrinsic value of documentary evidence at this juncture can neither be negated, nor minimized, nor said evidence can be ignored."
6. ' In case of Abdul Aziz Khan Niazi v. The State through Chairman NAB Islamabad reported in PLD 2003 SC 668, it has been held as under:-- "It is the fundamental principle of criminal administration of justice that unless the prosecution prima facie, satisfies the court about the culpability of a person, the bail to him cannot be withheld merely on the basis of presumption of guilt and the essential question for determination in such circumstances would be regarding the true character of, the transaction and the nature of offence which was allegedly committed, therefore, unless in the light of evidence in the hands of prosecution, the case is brought within the parameters of expression 'reasonable grounds' to believe that the offence with which a person was being charged was committed by him, the bare accusation would not be sufficient to curtail his liberty."
7. ' In case of Saeed Ahmed v. The State reported in 1996 SCM R 1132, it has been held as under:-- "The case entirely depends upon documentary evidence which seems to be in possession of the prosecution and challan has already been submitted. The objection of the learned counsel regarding addition of section 409, P.P.C. May carry some weight while considering the bail application. As there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution in the circumstances, we convert the petition into an appeal and allow it, and grant bail to the petitioner."
8. ' In case of Ijaz Akhtar v. The State reported in 197$ SCMR 64, it has been held as under:-- "No doubt the amount involved is large but by itself this would be no ground for refusing bail. Mr. K.M. Iqbal then submitted that the petitioner might tamper with the evidence if enlarged on bail. If the petitioner abuse the to him, the State can prosecute its remedies in the Sessions Court but at this stage in the absence of evidence in support of this allegation, we cannot refuse bail, and there is no such evidence."
9. ' In case of Muhammad Shoaib Wasti v. National Accountability Bureau through Director-General reported in 2009 YLR 155, it has been held as under:-- "From the evidence produced by the prosecution along with their comments against each petitioner it is clear that the allegation could only be determined at the conclusion of the trial as deeper appreciation of evidence is required to see as to whether petitioners are involved in the ease or otherwise. From the tentative assessment we are of the view that the allegations by themselves would not constitute bar for grant of bail in the peculiar facts and circumstances of the present case and without touching the merits of the allegations and grievances of the petitioners which might prejudice the case of any of the parties, the petitioners are entitled to the concession of bail."
10. ' In case of Muhammad Saeed Hadi v. The State and 2 others reported hi 2002 SCM R 282, it has been held as under:-- "As regards the nature of accusation against the petitioners, the truth or otherwise of such allegations can only be determined at the trial by the Court after deep analysis of the evidence that may be adduced by .The parties. Without going deeper into the merits of the prosecution case, it may suffice to observe that prima facie the petitioner does not appear to be guilty of misuse of official position or misappropriation of public funds to his own use or in order to cause monetary loss of public funds or to obtain illegal gain for himself or for any of his relatives or friends. It is not the case of the prosecution that the amount sanctioned by him was not actually spent on the works for which it was approved."
11. ' In case of Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others reported in .1994 SCM R 1283, it has been held as under:-- "A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion-that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. As observed in Ch. Abdul Malik v. The State (PLD 1968 SC 349), however, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime.
12. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. In the present case as discussed above, the learned Judges came to the conclusion that the action being mala fide and also the material documents not having been produced, no reasonable grounds existed to believe that the accused had committed the crime. This Court rarely interferes with the discretion exercised properly, judicially and legally by the High Court. In our view, considering the facts and circumstances of the case and the material produced, the learned Judges were justified in relating the detenue on furnishing personal bond. In cases where the liberty of a citizen is involved, the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenue the superior Courts should not be reluctant to step in the grant relief to the citizens."
13. ' In case of Mian Manzoor Ahmed Watto v. The State reported in 2000 SCM R 107, it has been held as under:-- "As discussed earlier, the object of criminal prosecution is not to punish an under trial prisoner for the offence alleged against him. The object of criminal trial is that the accused is made to face the trial and answer the criminal charge against him. Since we have reached the conclusion after considering the medical report received from A.F.I.C. On the condition of the appellant that his continued detention in the jail is hazardous to his life and that the specialized treatment needed by him, cannot be provided within the jail premises, we are inclined to admit the appellant to bail in all the above three cases."
14. ' In case of Mian Muhammad Shahbaz Sharif v. The State reported in 1997 M LD 2484, it has been held as under:-- "Bail on medical ground. Medical repats, certificates, prescriptions and the recommended treatment of the accused by Medical Experts revealed that he was suffering from a prolapse disc of serious nature requiring specialized treatment not available in jail and that his condition was likely to deteriorate further if not properly attended to and subjected to essential treatment which might even lead to paralysis. Facility of the recommended treatment of accused, admittedly, was not possible in jail. Accused having made out a good case for grant of bail on the ground of sickness was released on bail accordingly."
15. ' In case of Sanaullah Babar v. The State and 2 others reported in PLD 2003 Peshawar 175, it has been held as under:- "The petitioner is more than 65 years of age and is at the tail end of his life. The advance age coupled with infirmities and number of diseases which require specialized treatment and extreme care and diet cannot be ignored and kept aside while considering the plea of bail on medical ground. A perusal of the record would reveal that the petitioner is a diabetic patient and has recently undergone two operations of hernia both on left and right sides. The petitioner is also patient of high blood pressure and hypertension. His both eyes have been operated and lenses have been inserted. His recovery from ailment shall be surely, slow if he remains in detention. The prescriptions and treatment record of the petitioner clearly tends to suggest that the petitioner's detention in jail or even his stay in hospital may result in petitioner's collapse any time. The petitioner requires immediate treatment. This object obviously cannot be achieved by detaining the petitioner in jail indefinitely or to refer to him to a hospital for the purpose of treatment for a limited time. The bail on medical ground can be granted if the Court reaches a conclusion on the basis of medical report that the ailment with which the accused is suffering is such that it cannot be properly treated in jail and some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life."
16. ' In case of Zakhim Khan Masood v. Special Judge Central, Rawalpindi and 3 others reported in 1998 SCM R 1065, it has been held as under:-- "It has been observed by the doctor in the above report that the ailment with which the petitioner is suffering, is likely to have hazardous effects on his life because stress and strain may aggravate his disease. The petitioner is, undoubtedly, sick and as such, needs treatment in conducive conditions free from any kind of pressure. In custody, it cannot be said that the petitioner shall have full peace of mind. His recovery from ailment shall, surely, be also if he remains in detention. We are, therefore, satisfied to observe that the petitioner's life may seriously be to danger if he is not released on bail."
17. ' In case of Abdul Aziz v. Bashir Ahmed and The State reported in PLD 1966 SC 658, it has been held as under:-- "In a case where there is reasonable ground for believing that an accused person is guilty of an offence punishable with death or with transportation for life, bail may yet be granted if he be sick or infirm, and the Additional Sessions Judge had recorded a clear finding to that effect. It was not a finding based on his opinion. It was founded on a report of a Medical Officer certifying that Abdul Aziz had been under treatment for an ailment for a month and a half."
18. ' Learned D.P.-G. For NAB has argued that the project was commenced somewhere in the year 1980 and in spite of more than 30 years the project has not been completed and possession of the plots have not been handed over to the allottees. Per learned D.P.-G. In spite of full payment the allotments of 59 allottees have been cancelled and the petitioner has not completed the internal/outer development work and also failed to hand over the possession of the plots to the allottees and hence has committed offence of cheating by dishonestly inducing members of the public at large to deliver any property including money within the meaning of sections 9(a)(ix) and
(x) of the National Accountability Ordinance, 1999, and is liable for punishment with rigourous imprisonment for a term which may extend to 14 years and with fine as provided under section 10 of the said Ordinance. Per learned D.P.-G. The petition has been filed prematurely as 90 days for investigation as provided under section 24 (d) of the NAB Ordinance 1999 has not expired and the petitioner, is still required for further investigation and thumb impression has not been taken and some signatures and original documents are required to be verified and the reference has not been filed. The petitioner's company is demanding extra amount from the allottees for completing the development work and there is strong apprehension that the original record would be tampered as the accused/petitioner is required for verification of his signature and more particularly during investigation the petitioner himself has admitted his guilt by filing an application for grant of plea bargain under section 25(b) of National Accountability Ordinance 1999, which was not accepted by the NAB. Per learned D.P.-G. The petitioner is being provided proper medical treatment and has been referred to National Institute of Cardio Disease for checkup. In -support of his contentions the learned counsel has relied on the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan, reported in PLD 1971 SC 677.
19. ' We have heard both the learned counsel, perused the available records and the citations relied by them. Before we proceed dilating on the merits of the case it may be pointed out that in spite of the provision of section 9(b) of the National Accountability Ordinance, 1999 curtailing the jurisdiction of the Courts to grant bail the Supreme Court of Pakistan in its landmark judgment in the case of Khan Asfandyar Wall and others v. Federation of Pakistan through Cabinet Division, Islamabad and others reported in PLD 2001 SC 607 that the High Court in exercise of its constitutional jurisdiction is empowered to grant bail to a person facing prosecution for an offence under the National Accountability Ordinance, 1999 and obviously all those grounds which are relevant for grant of bail under the ordinary law, can equally be considered for grant of bail in the Constitutional jurisdiction.
20. ' From the record it is evident that the housing project was launched sometime in the early 1980's in the outskirts of Karachi. It is not the allegation of the respondents that land is not available at site or there are double allotments. The only allegation against the petitioner is that some 59 out of more than 2000 allottees of the housing project have complained that in spite of full payment they have not been handed over the possession of their respective plots. There is also allegation that development work has not been completed.
21. ' Prima facie it is our view that cancellation of allotment for breach of the terms and conditions of allotment of 59 allottees out of over 2000 allottees over a period of 30 years cannot be deemed and considered as cheating and fraud within the meaning of section 9(a) (ix) and (x) of the NAB Ordinance, 1999 and the affected allottees could have instituted civil or criminal proceedings against the company. There is no allegation as to non-availability of land at site or to the abandoning of the project or winding up of the petitioner's company. The development work had been started and from the record it transpires that some of the allottees have been handed over the possession of the plots. That normally in housing projects internal development work is to be carried out by the developers and the outer development work, is to be carried out by the local authorities and utility departments. The petitioner has given reasonable explanation for the delay in completing the development work. However, it will have to be determined at trial after recording of evidence whether the allotments were cancelled in accordance with law and what development work is to be done and at whose expense. From the documents filed by the petitioner, NAB in another housing project has consented to a settlement through which the allottees were required to pay outstanding dues as well as External Development Charges at the rate of Rs,538 per square yard and time was given to the developer to complete the development work. It has been specifically stated that the petitioner's company is ready and willing to hand over the physical possession to the allottees subject to payment of all due instalments and Government dues, which have been charged/demanded by the Government and local Government from time to time.
22. ' It is our tentative view that the delay in development work and handing over possession cannot be exclusively attributed to the petitioner's company without recording of evidence. It could be due to various reasons including political unrest and deteriorating law and order situation in the eighties and nineties, allottees having lost interest and defaulting in timely payment of instalments, resulting in the delay in the development work and the Government as well as Local Authorities started demanding increased amounts towards outer development charges and additional taxes.
23. The bare reading of the terms and conditions of the application filed under section 25(b) by the petitioner while under remand of NAB Authorities, cannot be considered as an admission of guilt.
24. Since the petitioner is an old person and is a chronic patient of high blood pressure, uncontrolled hypertension and unstable angina and for which he is required to take periodical medical checkups and has been advised coronary Angiography and since custody his health has been seriously deteriorated and if immediate medical treatment is not administered his health will worsen and life will be put in danger since such facilities and the recommended treatment, admittedly is not possible in jail.
25. ' From the above discussion and the material placed before us read with the reported cases cited at bar, we have come to tentative conclusion that the prosecution has been only able to establish a feeble nexus of the petitioner with the charges levelled against him. The respondents have prima facie failed to show that there was a scam or any acts criminal or financial nature within the meaning of section 9 (a) (ix) of NAB Ordinance 1999, planned or executed by or on behalf of the petitioner or his company to cheat or defraud the public at large. It would need more substantial evidence to prove criminal liability of the petitioner, which could only be done at the trial. The Administrative Judge, in his order of remand passed on 26-11-2010, the investigation is already over and the petitioner is no more required by the NAB Authorities for further investigation and has been remanded the petitioner to judicial custody. The entire case of the prosecution is based on documentary evidence and record is in possession of the NAB, and there is no likelihood that the petitioner would tamper with the record. There is no allegation that the petitioner has not cooperated with the prosecution. Prima facie the petitioner has made a case of further inquiry within the meaning of section 497(2) of Cr.P.C. From the material placed before us we are not prima facie satisfied or ready to believe that there reasonable grounds exist that the accused is guilty of the offence as alleged. Hence using are discretionary powers we deem fit to grant the benefit of concession of bail to the petitioner in the sum of Rs,10,00,000 (Rupees Ten Hundred Thousand) with two sureties and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. The above discussion and findings are only tentative in nature and should not influence or prejudice the accountability court in arriving at a just and fair decision, based on the evidence to be adduced at trial.
26. ' This Constitution petition is disposed of accordingly in above terms.