Muhammad All Mazhar, J.--This petition has been brought to challenge the warrant of arrest issued by the NAB Authorities and the petitioner has also prayed for the concession of post arrest bail.
2. The brief facts of the case are that the Respondent Nos. 1 to 3 have arrested the petitioner on the allegations that he is a front man of Sikandar Abdul Karim against whom inquiry was pending since 2012. The petitioner is brother of Sikandar Abdul Karim who was representing his brother in his absence. There is a dispute between M/s. Beach Developers and its allottees and since certain work was , required to be done by the DHA which is allegedly pending therefore, the possession of the properties could not be handed over to the allottees by the developers. On 1.10.2014 the petitioner was arrested by the NAB authorities, however, on 2.10.2014 the petitioner was produced in Court whereby it was revealed that he was arrested pursuant to a warrant of arrest dated 20.11.2013.
3. The learned counsel for the petitioner argued that the petitioner has not committed any offence.
The grounds and the reasons of arrest are based on mala fide and without any plausible or cogent reasons. Out of 600 residential flats only 10 allottees have lodged the complaint even otherwise a dispute between the builder and the allottees is a dispute of civil nature and the NAB has no authority under the law to take the cognizance of civil dispute. He further argued that considerable time has lapsed but no reference has been filed by the NAB in the Accountability Court. No purpose would be served keeping the petitioner behind the bar on the basis of groundless charges as the petitioner has not committed any offence under the provisions of the NAO, 1999. Learned counsel further argued that according to the warrant of arrest, the petitioner was found accused of commission of schedule offences of corruption and corrupt practices punishable under NAO, 1999, while the authorization under Section 18(c) of NAO 1999 was issued for investigation against Sikandar Abdul Karim, owner of Beach Developers Karachi' and others. However in the grounds of arrest of the petitioner the allegation of cheating public at-large has been levelled by not 'handing over the possession of flats/shops to the allottees in Silver Sand Projects, D.S-123 Khayabane- Shamsheer DHA, Phase-WI Karachi. It is further stated in the grounds 'of arrest that the petitioner in absence of Sikandar Abdul Karim worked as front man of his brother. The learned counsel further argued that the NAB is inviting complaints through public notices in the newspapers. NAB issued a notice to the Managing Director of Beach Developers on 20.11.2012 in which also the name of present petitioner was not mentioned. Similar notices were also issued to the other partners namely, Ms. Nilofer w/o Sikandar Abdul Karim, Haji Younus and Majeeda Fatima. Even the letter dated 27.11.2012 written by the NAB to the partners of Beach Developers as an offer of plea bargain does not suggest anything against the present petitioner. The learned counsel referred to clause
(ix) of Section 9 of the NAO, 1999 and argued that in this clause "cheating' means the offence of cheating as defined under Section 415 of Pakistan Penal Code which is an act of deceiving a person fraudulently or dishonestly induces any person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induce the person so deceived to do. The learned counsel argued that it is quite evident from the material available on record that neither the petitioner has cheated any person nor caused any damage or harm to any person or property. In support of his arguments the learned counsel referred to the case of Begum Riffat Ahad v. NAB (2003 P.Cr.L.J. 87) in which it was held that furnishing of grounds of arrest is not only the requirement of Section 24(d) of NAO, 1999 but' it is also mandated in Article 10 of the Constitution. He next referred to the case of Zahoor Ahmed Shaikh v. NAB (PLD 2007 Karachi 243) in which the learned Division Bench of this Court while dilating upon various provisions of NAO; 1999 and Cr.P.C. Held that under the powers of arrest the Chairman, NAB can deprive the liberty of citizens, . Therefore, it is to be safeguarded jealously and citizen should not be arrested without fulfilling the conditions mentioned in any clause of Section 54 of the Code. Further the conditions prescribed for the exercise of such powers including procedural requirement must be strictly followed and he should conduct himself justly, fairly, equitably for the advancement of the purposes of Ordinance in accordance with law. The Chairman NAB is under an obligation and duty bound to arrest a person if he is involved in a non-bailable offence subject to the condition that the requirements of Section 54 are fulfilled. In the case of Muhammad Hanif v. NAB (PLD 2007 Karachi 429), the learned Division Bench of this Court observed that the I.O. Did not collect or produce any material before the Judge connecting the petitioner with the crime but in spite of that the Judge granted police remand which was not justified hence the remand orders were declared illegal.
Learned counsel further referred to the case of Abdul Qadir v. Federation of Pakistan (2002 SCMR 1478) in which the apex Court held that the conveyance of the grounds and substance on the basis of which the accused is arrested is the first essential ingredient of Section 24(0) of the NAO, 1999 which is mandatory in nature and has to be complied with. In the case of Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashm.Iri (PLD 1969 S.C. 14), pertaining to the detention matter under the Defence of Pakistan Ordinance, 1965, the apex Court held that an action which is mala fide or colorable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant consideration is also not an action in accordance with law. Action taken upon no ground at all or without proper application of the said of the detaining authority would also not qualify as action in accordance with law and would therefore, have to be struck down as being action taken in an unlawful manner.
4. On the contrary, the learned ADPG NAB argued that the petition is premature. The petitioner is already on remand and the investigation is going on hence at this stage there is no justification to seek the bail. The I.O. Is still in the process of collecting the material which is to be confronted to the petitioner. The investigation was authorized against the accused Sikandar Abdul Karim of Beach Developers and the present petitioner being the brother -of aforesaid person was himself dealing the matters with allottees and also receiving instalments but the possession was not handed over to the allottees, hence he has also coin fitted an offence under Section 9(a) of the NAO, 1999. He was given the bank mandate to operate an account in Metropolitan Bank, DHA Branch, Karachi. He was also engaged with the correspondence with the NAB and his visiting card reflects that he was performing the duties as Chief Executive and copy of one visiting card was also produced on which backside the petitioner in his own handwriting allowed one of the allottees four instalments for the payment of extra charges. It was also averred by the learned ADPG NAB that Sikandar Abdul Karim execute& a general power of attorney in favour of the petitioner to perform various functions. Mere pendency of any civil suit with any allottee does not debar NAB to investigate any matter in which corruption is suspected. None of the allottees has been given possession of any flat or shop and for last 22 years the allottees are raising hue and cry for the possession of their booked unit/shop. He further argued that 11 cheques are available with the I.O. To show that the petitioner had drawn Rs, 11 millions from the account of Beach Developers and transferred the same in his own account. At least nineteen 161, Cr.P.C. Statements of affected allottees have been recorded by the I.O. So far.
5. The project in question was to be completed in the year 1994 which is still incomplete and according to DHA there are number of violations including construction of an additional floor, excessive height of the building reduction in the arcade area, excessive height of mezzanine and basement. It was further argued that the building plan and the revised building plan was submitted to the DHA which was not approved as they contain violations of their building regulations. Learned ADPG concluded that there is sufficient incriminating material to justify the arrest and filing of reference by the NAB and the petitioner is not entitled to the concession of bail.
In support of his argument he referred to the case of Muhammad Zafar Iqbal v. State (2003 P.Cr.L.J.
170) in which this Court observed that material collected by the prosecution shows that the accused has committed such acts which amounts to abetment of the offence of corruption and corrupt practices by the principal accused. Since reasonable grounds existed to connect the accused with commission of the offence the bail was declined. He next referred to the case of Ghulam Haider Jamro v. Chairman, NAB (2007 YLR 541), in which Court observed that under Article 199 of the Constitution, the grant of bail to accused involved in NAB cases though not barred by virtue of Section 9(b), NAO, 1999 but before exercising said jurisdiction the High Court had to see whether such powers should be exercised so liberally as totally nullify and make provisions of 9(b) of the Ordinance redundant. In the case of Asher Jan v. State (2002 MLD 603), the Court held that the criterion of bail in accountability cases would be different from that laid down for the cases under other laws. High Court has power to grant bail in suitable cases and such suitability could be judged on the ground of hardship and prima facie high improbability of conviction of the accused on the basis of material collected by the prosecution against him. In the case of Jamil A. Durrani v.
State (2002 MLD 1344) this Court held that the bail can be granted in cases under NAO, 1999 but only in appropriate cases where the Court comes to the conclusion that there is no reasonable ground that the accused has committed the alleged offence.
6.. M/s. Muhammad Noman Jamali and Jamal S. Mufti, counsel for the affected allottees filed applications on behalf of some of the affected allottees and requested that they may be allowed to assist the prosecution. They relied on the judgment of this Court reported in PLD 2013 Sindh 357 in which also in the NAB matter the complainant bank filed an application under Order I Rule 10, CPC for impleading them, however, their application was dismissed by this Court but their counsel was allowed to assist the prosecution. Hence we also allowed the counsel for the affected allottees to assist the prosecution. Mr. Noman Jamali argued that the petitioner in the capacity of chief executive himself signed the. Addendum agreements with the affected allottees. He also received the installments from the allotteeg and in the absence of his brother he was locking after the affairs of beach developers and the project. The statements of the witnesses recorded by the I.O.
Under Section 161 Cr.P.C. Have clearly shown the involvement of the petitioner. On receiving the installments the petitioner induced the members of the public-at-large that they will he given possession of their flats/shops but despite making payments they are deprived. The learned counsel appearing for the allottees referred to the case of Frida Rohail v. State (2007 MLD 347), in which also bail was applied in the NAB case in C.P. Which was refused for the reasons whether the signature of the petitioner on the agreements was genuine or not and whether petitioner entered into an agreement with two witnesses by using misappropriated amount could only be considered after conclusion of the trial. He next referred to the case of Mrs. Riac Qayyum v. State (2004 SCAR 1889) in which the apex Court held that the elaborate sifting of evidence cannot be made at the time of deciding the bail application but only tentative assessment is to be made. They further referred to the case of Abdul Adz Khan Niazi v. State (PLD 2003 S.C. 668) in which the apex Court in the NAB case held that bail cannot be claimed as a matter of right but there can also be no departure from the rule that bail in non-bailable offences should not be withheld as punishment therefore, the High Court while dealing with the question of bail in constitutional jurisdiction must consider it carefully and weigh in the scale of justice. The reasonableness of the grounds for withholding the bail from a person accused of a non-bailable offence must be shown through the material and merely a suspicion however, sufficiently strong it might be, is not enough to refuse the bail. The apex Court granted bail in the light of rule of consistency.
7. Heard the arguments. The corruption and corrupt practices is provided under Section 9 of the NAO, 1999. A holder of a public office or any other person is said to commit or to have committed the offence of corruption and corrupt practices for which the incidence are provided under clauses
(a) (i) to (xii) while clause (b) clearly spells out that all offences under NAO, 1999 are non-bailable.
At this juncture, we would also like to take into consideration the definitions of "accused" "associate" and "person". The definitions made us to understand that the "accused" includes a person against whom there are reasonable grounds to believe that he is involved in the commission of any offence under NAO, 1999 or is subject of an investigation or inquiry by the NAB. The term "associate" means any person who is or, has been managing the affairs or keeping accounts for the accused or enjoyed any benefit from the assets and the "person" includes a company or body corporate, the sponsors, Chairman, Chief Executive etc. And in case of any firm, partnership or sole proprietorship the partners, proprietor or any person having any interest in the firm, partnership or proprietorship concern or direction or control thereof. The offence provided under Section 9(a)(ix) of NAO, 1999 is an offence of cheating as defined under Section 415, PPC. A person said to have commit the offence of cheating if he dishonestly induces members of the public-at-large to deliver any property including money or valuable security to any person.
8. The powers of arrest are vested in the Chairman NAB under Section 24, who at any stage of the inquiry and investigation can issue direction that the accused if not already arrested shall be arrested while under clause (e) of Section 18 of NAO, 1999, the Chairman NAB and such members officers or servants of the NAB can exercise for the purpose of an inquiry or investigation, the powers to arrest any person and all the powers of an officer-in-charge of police station under the code. Though under clause (f) of the same Section it is clearly provided that an inquiry or investigation shall be completed expeditiously as may be practical and feasible while under clause
(d) of Section 24 an overriding effect was given that notwithstanding anything in the code where a holder of public office or any other person accused of an offence is arrested by NAB, he will be informed he ground in substance of his arrest and will be produced before the court within 24 hours of arrest and such person be liable to be stained in custody of NAB for the purpose of inquiry and investigation for a period not exceeding 90 days. So far as the remand f accused person is concerned, the Court may remand him to custody of exceeding to 15 days at a time and for every subsequent remand he Court shall record reasons in writing copy of which shall be sent to the High Court. The learned counsel for the petitioner referred to the cases of Begum Riffat Ahad, Ahmed Shaikh and Abdul Qadir (supra) in which Section 24(d) of the NAO, 1999 was dilated upon read with Article 10 of the Constitution that furnishing.Of grounds of arrest is mandatory and the arrest should not be made without fulfilling the requirement of Section 54, Cr.P.C. In the case in hand not only the warrant of arrest was issued but the grounds/reasons of arrest were also communicated to the petitioner on 01.10.2014 at the time of his arrest so we do not feel any illegality or violation of Section 24 (d) of NAO, 1999 or Section 54 of Cr.P.C. In which under its first condition a person can be arrested by the police without a warrant if he has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists of his having been so concerned. Nothing has been committed wrong by the NAB while arresting the petitioner in accordance with law. The case of Begum Agha Abdul Karim Shorish Kashmiri (supra) is also distinguishable as nothing has been pointed to us from the record that the arrest was mala fide or colorable exercise of powers.
9. It is an admitted fact that the petitioner is on remand and the investigation has not been completed nor any reference has been filed by the NAB in the Accountability Court. The learned counsel for the petitioner also referred to the case of Muhammad Hanif (supra) in which the remand order was declared to be illegal for the reasons that the I.O. Did not collect or produce any material before the Judge connecting the petitioner with the crime despite that the Judge granted police remand so the bench was of the view that the Court was not justified to grant the remand.
The petitioner has not challenged the order of remand or any illegality committed while granting the remand so the precedent alluded to is distinguishable. Even otherwise under Section 3 of the NAO, 1999 it is clearly mentioned that the provisions of Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. Though Section 17(a) explicates that unless there is anything inconsistent, with the provisions of the Ordinance, the provisions of Code of Criminal Procedure shall mutatis mutandis apply but clause (c) further explicates that the Court may for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.
10. It is well settled rather an age old principle that while deciding the plea of bail deeper appreciation of the evidence is not required and elaborate sifting of evidence cannot be made at the time of deciding the bail application but only tentative assessment is to be made and the High Court while dealing with the question of bail in constitutional jurisdiction must consider it carefully and weigh in the scale of justice. The reasonableness of the grounds for withholding the bail must be shown through some material and merely a suspicion however, sufficiently strong it might be is not enough to refuse the bail. In the cases of Zafar Iqbal, Ghulam Haider Jamro and Asher Jan (supra) the .Dicta laid down plainly expressed that if prosecution shows the material which reasonably connects the accused with the commission of offence the bail may be declined.
Though the bail may be granted in the NAB matters under the constitutional jurisdiction which can be judged on the ground of hardship and prima facie improbability of conviction of accused on the basis of material collected by the prosecution and if the Court comes to the conclusion that there is no reasonable ground that the accused has committed any offence, the bail may be granted but at the same time the Court has to also see whether such powers should be exercised so liberally as to nullify and make provisions of NAO, 1999 redundant. The white collar crimes are mostly based on documentary evidence and to find out in a nutshell whether a case of bail is made out or not? The Court has to preview and glance over the incriminating material for tentative assessm ent. Let us go through the material collected and produced by the prosecution during ongoing investigation which are as under:-
(a) Account opening form of the Beach Developers in Metropolitan Bank Ltd. Dated 09.02.2002. The form was duly signed by all the partners including Sikandar Abdul Karim. Elder brother of the petitioner. (A/c No, 20311- 714-101615).
(b) Letter of mandate dated 09.11.2002 for the same account (A/c. No, 101615) duly signed by all the partners whereby the signing mandate/authority was given to the petitioner for operating this account.
(c) Letter dated 22.12.2012 written by the petitioner to the Director General NAB, in which he requested the NAB to provide details of the complaint enabling him to prepare the response after consultation with Sikandar Abdul Karim. This letter was written by the petitioner on the letter head of Silver Sands Ocean Beach Apartments.
(d) 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. On the backside of this card in his own handwriting the petitioner allowed the payment of four installments of extra charges of Rs, 6,00,000/-.
(e) The learned counsel for the petitioner denied the handwriting of the petitioner on the aforesaid visiting card. 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). In the description of document at Sr.
No, 1 the above visiting card bearing signature on the backside marked as Q-1 and handwriting Q-5 are mentioned and in the concluding remarks the handwriting expert observed as under:-- "Reason: pen pressure, tremor refers to depth and density of ink, deposits, pen lift, refer to relative width in rejoining and connection of line retracting ticks were not detected of a forgery in questions.
' At the end of this process the (QDE) have arrived with peer view at conclusion as follows: OPINION: Matched"
(f) 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. The above minutes are also mentioned in the handwriting expert's report and the signature of the petitioner was found matched.
(g) Terms and conditions of addendum No, 1 dated 15.5.2000. This was signed by the petitioner as Chief Executive and in the Condition No, 7 it was agreed with the allottee that "The construction of apartment/shop will be completed within one year of signing this addendum. There will be no escalation provided all the installments as agreed are paid according to schedule". This document is also mentioned in the handwriting expert's report at Sr.No, 4 and the result was found matched, (three similar addendum were also pointed by the counsel for the affected allottees which are available in the file at Page No, 173, 223, 305 and 499),
(h) Copies of 11 cheques issued in the year 2011-2012 to show that a sum of Rs, 11 million has been transferred from the account of Beach Developers in the account of the petitioner.
(i) The I.O. Has recorded 161 Cr.P.C. Statements of nineteen affected persons who have already paid considerable amount to the builders against their booked apartments or shops. Total amount paid by them is Rs, 31,208,475/-. According to the prosecution this amount was paid by the affected persons much earlier and if the current valuation is made at par the figure of the amount would be highly inflated.
(j) Copy of general power of attorney executed by Sikandar Abdul Karim in favour of the petitioner.
' In clause 6 the powers were given to the petitioner "To manage, control, supervise, deal with and look after the affairs of my aforementioned businesses on my behalf for me and also the legal proceedings which are pending before the Courts of law or authorities shall be filed against me in future." In the recital of the power of attorney the principal Sikandar Abdul Karim is said to have been engaged in the business of construction including some other businesses.
11. The learned counsel for the petitioner argued that the petitioner has no nexus or connection with alleged offence and he has been falsely implicated in the case. He further argued that the petitioner has not committed any act of cheating as defined in Section 415, PPC nor dishonestly induced members of the public-at-large to deliver any property including money or valuable security to any person. On the contrary, the documents produced by the prosecution are self- explanatory and sufficient to incriminate the petitioner. The incriminating material is amply showing that the petitioner was at the helm of affairs and not only.Actively participated in the affairs of Beach Developers but also acted as attorney of his elder brother Sikandar Abdul Karim.
He transferred the amount from the firm's account to his own account. He also signed the addendum agreement and committed to deliver the possession. In view of the minutes of meeting, the petitioner was saddled with the responsibility of finance and recovery. The handwriting expert's report has confirmed and verified the signature of the petitioner on various documents mentioned in the description of the documents at Sr.Nos. 1 to 9. The brother of the petitioner Sikandar Abdul Karim is out of Pakistan for the last considerable period. The petitioner's counsel argued that 600 flats were announced out of which only 19 complainants have approached NAB. On the contrary, it is also a fact that in such a huge project large members of public booked their apartments and shops. The project was launched in the year 1992 and despite making payments the possession has not been handed over and the affected allottees are facing serious hardship, agonies and miseries. The numbers or quantity of the complaints is not the decisive consideration but the matter of concern is the pith and substance of the ordeal and distress of the affected members of public-at-large. The investigation is still incomplete and the I.O. Stated before us that some more important documents are to be recovered and confronted to the petitioner. 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
12. As a result of above discussion, this Constitution petition is dismissed. However, the petitioner may repeat the petition for bail after completion of investigation and filing of reference by the NAB Authorities. The observations made by us are tentative in nature and will not prejudice the case of either party. All pending miscellaneous applications are also disposed of.