' SHAHNAWAZ TARIQ, J.---Through captioned Constitutional Petition, petitioner Sikandar Ali Qureshi has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 with following Prayers :-
1. Declare the pending inquiry on fake, bogus and unauthenticated complaint dated 11.05.2015 is illegal, unauthorized, colorable partial and to be quashed. Ii. Immediately constitute a medical board as the petitioner lacks good health or direction may be given to the authorities to examine the petitioner from the concerned specialist. Iii. Enlarge the petitioner on bail under the facts and circumstances of the case."
2. The relevant facts spelt out from instant petition are that petitioner has been serving as Sub- Registrar in BPS-14 at the office of Board of Revenue, Karachi and is accused in Reference No,40 of 2005 pending before Accountability Court No,III, Karachi. Petitioner was apprehended by the NAB officials on the allegations that he being Sub-Registrar, Gadap Town, Karachi w,e,f, 03.07.2007 to 23.07.2007 registered 422 documents wherein malafidely lesser amounts than the due amount, has been collected in the head of Capital Value Tax, Stamp Duty and Registration Fee, hence accused caused loss to Government Exchequer worth Rs,10,014,613/-. After arrest, petitioner was shifted to NICVD (National Institute of Cardio Vascular Diseases) where doctors thoroughly examined him and considering the medical history, they advised the NAB Authorities to shift the petitioner from NICVD to S.I.U.T. As one kidney of the petitioner is un-operational and it should be removed by the concerned expert of medical team, hence instant petition.
3. Learned counsel for petitioner contended that valuation of the properties is fixed for the purpose of Stamp Duty, Registration Fee, CVT and Town Tax on the basis of valuation notified by the Sindh Government and there was absolutely no chance that the petitioner had reduced the amount assessed for the registration of documents of 422 plots at the time of registration; that documents were registered after completion of all the codal formalities and thereafter documents were sent to the Board of Revenue where Stamp Wing again inspected the documents; that in case of deficit valuation of stamps, Stamp Wing issues differential sale challan of the property tax to be charged by the Sub-Registrar; that besides the Inspection team of the Stamp Wing the documents were also checked by the inspection Registration Officer who is appointed under section 8 of the Registration Act; that without all Clearances, documents cannot be microfilmed nor delivered to the concerned parties and such clearance certificate was imposed' on every registered document; that irrespective of the above process, all the documents are being checked annually by the Inspector General Registration under section 69 of the Registration Act, hence the reference has been filed by the NAB officials without proper investigating the matter; that petitioner is an innocent and has nothing to do with the alleged embezzlement whatsoever and has not committed any wrong nor caused any monetory loss to the public exchequer; that inquiry has been initiated against the petitioner on the basis of an anonymous complaint, which was without name and signature of any complainant nor date was mentioned therein, which was received in the office of Director General, NAB, Karachi on 10.04.2008 and till 2013, no action was initiated in this regard; that out of 422 registered sale deeds only 19 documents have been collected by the NAB Authorities and in some of documents CVT challans have also been annexed. Learned counsel for petitioner has also produced copy of letter dated 11.09.2009 issued by Additional Commissioner-E, Enforcement and Collection Division-III, Karachi addressed to District Registration, Karachi with direction to recover CVT from 01.07.2006 on all such transfers by the sub-Registrar in respect of industrial and agricultural lands as CVT was not charged or short charged; that petitioner was medically examined by respondents and doctor referred the petitioner to S.I.U.T. For dialysis and even learned NAB Court has also directed to Superintendent for dialysis; that petitioner was also referred to Agha Khan University Hospital, Karachi for kidney treatment; that investigation has been completed and the allegations leveled against the petitioner are based on documentary evidence, which has also been collected by the NAB authorities; that considering the lungs, heart and kidney problems, petitioner may be released on bail. Learned counsel for petitioner relied upon the cases of Haji Mir Aftab v. The State (1979 SCMR 320); Imtiaz Javed v. The State (PLD 2008 Karachi 522); Muhammad Boota v. The State (2013 PCr.LJ 318); Abdul Hadi Siddiqui v. National Accountability Bureau (2015 PCr.LJ 185); Manzoor Ali v. The State (2013 PCr.LJ 649); Sanjay Chandra and others v. Central Bureau of Investigation and others (2012 SCMR 1732); Muhammad Zafar Maniar v. Shahzad Ahmed and another (2011 MLD 602) Ina an unreported judgment date 27.10.2015 passed in C.P. No,D-4567/2015 Anwar Ahmed v. Chairman, National Accountability Bureau and others.
4. While controverting the above submissions, Mr. Noor Muhammad Dayo, D.P.G. NAB contended that the petitioner has misused his official authorities while posted as Sub-Registrar, Gadap Town, Karachi and caused loss of Rs,10,014,613/- to the government exchequer while registering 422 sale deeds and has committed an offence of corruption and corrupt practices as envisaged under section 9-A of the National Accountability Ordinance, 1999, punishable under section 10, of the Ordinance and schedule thereto. However, learned D.P.G. NAB candidly endorses the critical health condition of the petitioner as he is suffering from chronic kidney problem.
5. We have heard the learned counsel for the parties supported with case laws and scanned the material available on record minutely.
6. Indeed, petitioner remained posted as Sub-Registrar from 03.07.2007 to 23.07.2007 and during his tenure of posting, he allegedly registered 422 sale deeds pertaining to GA dap Town. It is pertinent to mention that out of 422 registered sale deeds, (sic.) and caused loss of Rs,10,014,613/- to Government Exchequer, however, out of those registered sale deeds only 19 sale deeds have been collected by the NAB authorities, and copies whereof have been supplied to the petitioner and on examination of said sale deeds, it has reflected that in one of the registered sale deed executed in the name of Muhammad Yaqoob, C.V.T. Was paid through challan, and above diverged circumstance require serious consideration.
7. In case of Haji Mir Aftab v. The State (supra), the honourable Supreme Court has observed as follows:- "Person once found sick and infirm gets his case covered by second proviso to section 497, Cr.P.C.
Not open to Court to quantify such person's sickness and infirmity. Petitioner at least 20 years of age and suffering from duodenal ulcer and eye-trouble involving old trachoma. Petitioner made out a case for grant of bail."
' In case of Abdul Aziz Khan Niazi v. The State through Chairman NAB Islamabad reported in PLD 2003 SC 668, the honorable Supreme Court has observed as follows:- "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."
' In case of Saeed Ahmed v. The State reported in 1996 SCMR 1132, the honorable Supreme Court has observed as follows:- "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."
' In case of Ilaz Akhtar v. The State reported in 1978 SCMR 64, the honorable Supreme Court has observed as follows:- "No doubt the amount involved in 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."
' In case of Muhammad Saeed Hadi v. The State and 2 others reported in 2002 SCMR 282, the honorable Supreme Court has observed as follows:- "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."
8. Additional Commissioner-E, Enforcement and Collection Division-III Regional Tax Office, Karachi issued letter dated 11.09.2009, addressed to District Registration, Karachi regarding collection of CVT on transfer of industrial and agricultural land, which reproduced as under:- ' OFFICE OF THE ADDITIONAL COMMISSIONER-E ' ENFORCEMENT & COLLECTION DIVISION-III, REGIONAL TAX OFFICE, KARACHI.
No, AC-E/ Enf-&-Col-Div-III/2008/101 ' Dated: 11.09.2009 ' To, MR. Ghulam Mustafa Abbasi, District Registrar, Karachi.
' Subject; - COLLECTION OF CAPITAL VALUE TAX (CVT) ON TRANSFER OF IND USRTRIAL AND AGRICULTURAL AND ' Ref;- Your letter No, 952/ DR of 2009 dated:13.08.2009 Please refer to the above.
' It is clarified that in respect of an Industrial and Agricultural Land, CVT is chargeable in the same manner as on all other Urban Immovable Commercial Properties. The Industrial and Agricultural Lands/Properties are part and parcel of commercial properties and hence CVT is also. Chargeable on them.
' With effect from 01.07.2009, CVT is chargeable on Commercial Immoveable Property including agricultural and industrial property) @ 4% of the recorded value. In case value is not recorded, then CVT is chargeable @ Rs, 100/ per sq. Ft. Of the landed area. Where the industrial/agricultural immovable property is also a constructed property,' additional CVT @ Rs,10/ per sq. Ft. Of the constructed area has to be charged and recovered before any transfer is made by the Sub- Registrars.
' You are therefore, requested to recover CVT w,e,f, 01.07.2006 on all such transfers made by the Sub-Registrar in respect of industrial/agricultural lands and properties on which CVT was not charged or short charged. Please note that from 01.07.2006 to 30.06.2009, CVT on such properties was chargeable (a 2% of the landed area only. Whereas from 01.07.2009 onwards the CVT as chargeable has been explained in the preceding paragraph of the letter.
' You are also requested to immediately direct all your Sub-Registrars to implement the above law immediately and also to furnish a list to this office of such transfers made from 01.07.2006 till to- date where the CVT was not charged for any reason.
' (AFAQUE AHMED QURESHI) ADDITIONAL COMMISSIONER-E
9. Admittedly, an anonymous complaints was received in the office Director General, NAB on 10.04.2008 but till the year 2013, no action was initiated by the NAB against the petitioner and in this context no justification and plausible explanation has been placed by NAB on record for its inactive attitude for such a long delay which could not be ignored as a matter of routine. Likewise, there is no explanation or material available with NAB that what action for recovery of short stamp duty and CVT was initiated in response to the clarification letter dated 11.09.2009, for recovery of deficit stamp duty and CVT w,e,f, 01.07.2006, addressed to District Registrar, Karachi, whereby Additional Commissioner-E had clarified that CVT is chargeable in respect of Industrial and Agricultural land in the same manners as on all other urban immovable commercial properties; District Registrar was further directed to recover CVT w,e,f, 01.07.2006 On all such transfer made by the Sub Registrars in respect of industrial/agricultural land of properties in which CVT was not charged or short charged; it was further directed that from 01.07.2006 to 30.06.2009, CVT was chargeable at the rate of 2% on the landed area only, whereas from 01.07.2009 and onward, CVT was chargeable at the rate of Rs,100 per square feet of the landed area and Rs,10, per square feet of constructed area; it was further advised to immediately direct all Sub Registrars to implement the above directions and furnish a list to the office of such transfers made from 01.07.2006 till to date. From bare reading of above letter it is crystal clear that all Sub Registrars of Karachi Division had either not charged or short charged CVT at the time of registration of such sale deeds w,e,f, 01.07.2006, hence without compliance of above referred direction issued by the competent authority, criminal proceedings/inquiry initiated by the NAB requires serious considerations. Consequently, in view of letter dated 11.09.2009, issued by Additional Commissioner-E, Regional Tax Office, Karachi to collect deficit stamp duty and CVT from 01.07.2006, NAB Authorities have prima facie ' failed to show that there was any criminal act of financial nature, within the meaning of Section 9(a)(ix), of National Accountability Act, 1999, committed by the accused to cheat or defraud the public at large or caused loss to the public exchequer, therefore, more substantial evidence is needed to prove criminal liability of accused, which could only be done at the trial. Prosecution case is entirely based on documentary evidence which after collection is lying in the custody of NAB Authorities, thus, there is no question of tampering with the same, Allegation against accused with regard to his participation in the offence is yet to be proved by the prosecution as such further detention of the petitioner will not serve any useful purpose. Investigation has already been completed and accused is no more required for further investigation. Prima facie accused had made out case of further inquiry within the meaning of section 497(2), Cr.P.C.
10. It is significant to mention that on the day of arrest petitioner was got medically examined by the NAB and doctor referred him to S.I.U.T. For dialysis. Such directions were also issued by the learned NAB Court vide order dated 26.11.2015, passed on the application for judicial custody moved by the Investigating Officer. Subsequently, learned NAB Court, in view of no objection given by the Sr. Prosecutor NAB, vide order dated 30.11.2015, again directed Superintendent, Central Prison, Karachi to produce the petitioner before the consultants of Agha Khan University Hospital for medical check-up and treatment, on the ground that petitioner is patient of diabetics, retinopathy, chronic cardio, myopathy and chronic kidney diseases. Superintendent, Central Prison, Karachi referred the petitioner to Agha Khan University Hospital, Karachi on 01.12.2015, and considering the chronic kidney diseases of the petitioner, he was admitted in hospital and advised for dialysis.
Material available on record emanate that acute sickness and ailment of accused cannot be properly treated within the jail premises which requires specialized treatment and proper care which is possible in jail and his continuous detention in jail would definitely be detrimental and harmful to his life. Considering the no objection extended by Sr. Prosecutor NAB, petitioner is also entitled for concession of bail on the medical grounds.
11. For the above facts and circumstances, the petitioner is enlarged on post-arrest bail on furnishing a solvent surety in the sum of Rs,500,000/- (Rupees five lacs) and PR Bonds in the like amount to the satisfaction of the Nazir of this Court. Consequently, instant Constitution Petition is disposed of in the foregoing terms.