Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Petitioner Asghar Virk seeks post-arrest bail in Reference No.24-M-2019 pending in the Accountability Court, Multan.
2. Brief facts of the case are that in the year 2012 Muhammad Raman, Sarfraz Khan and Muhammad Rafique Javed (hereinafter referred to as the "Developers ") launched Ajwa Garden Housing Scheme comprising 92 kanals 18 marlas in Mauza Qadir Bahhish Channer , District Bahawalpur (the "Scheme "), without getting it sanctioned under the Punjab Private Housing Schemes and Land Sub-Division Rules , 2010. The Tehsil Municipal Administration Bahawalpur (City) issued them legal notices whereupon they applied for regular approvals which were accorded to them vide Letter No.TMA/(City)BWP/401 dated 20.2.2013. In terms of that letter they mortgaged 218 marlas 40 sq.ft. of saleable land as security for due completion of development works. Subsequently the Developers included an additional 27 kanals 02 marlas in the Scheme raising its total area from 92 kanals 18 marlas to 120 kanals. Again the TMA came into action and issued them legal notices and directed them to seek approval for their new layout plan. The Developers complied with the direction. On 23.12.2013, the District Planning and Design Committee (DPDC) granted them revised sanction subject to fulfilment of mandatory codal formalities. In 2018 the NAB authorities received complaints from the general public that the Developers had cheated them by not completing development works and not providing civic amenities. The competent authority authorized an inquiry which was upgraded to investigation on 19.3.2019. The NAB found that the Developers and various officers of the TMA, including the Petitioner , colluded with each other and made wrongful gain in the sum of Rs.7,30,20,500/- at the cost of the general public. Accordingly , Accountability Reference No.24-M-2019 was filed against them for offences under clause s (iv), (vi), (ix) and (xii) of section 9(a) of the National Accountability Ordinance, 1999 (the " NAO ").
3. The learned counsel. for the Petitioner contended that the Petitioner was a petty officer and had been made a scapegoat. There was no evidence that he dishonestly issued Certificate dated. 8.6.2016 and made any wrongful gain therefrom. More importantly , his senior officer, Arshad Ali Ghumman, had been admitted to post-arrest bail by this Court vide order dated 26.11.2019 passed in Writ Petition No.14327/2019. He was entitled to the same relief on the basis of rule of consistency .
4. On the other hand, the learned Special Prosecutor for NAB controverted the above contentions. He contended that the Petitioner issued Certificate dated 8.6.2016 without any ground check and dishonestly certified that the development works of the Scheme had been completed cent percent. It was this Certificate on the basis of which the Developers' request was processed and 156 marlas mortgaged land worth Rs. 49 million was released to them.
He argued that the Petitioner played a key role in perpetration of the fraud and he could not pass the back to his co-accused. The learned Law Of ficer prayed for dismissal of this petition.
5. Arguments heard. Record perused.
6. The Punjab Private Housing Schemes and Land Sub-Division Rules, 2010 (the "Rules "), set out detailed provisions for scrutiny , evaluation, sanction and monitoring and execution of private housing projects by the government authorities. Rule 17 stipulates that a Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority shall require a developer to fulfil certain requirements/conditions before sanctioning a scheme. These inter alia include submission of a mortgage deed in accordance with Form-C (20% for housing scheme and 10% for farm housing scheme) of saleable area as security for completion of development work. -
7. The Developers in the instant case also mortgaged 218 marlas 40 sq.ft of saleable land as security in terms of Rule 17, ibid, in pursuance of Letter No.TMA/(City)BWP/401 dated 20.2.2013. They must have mortgaged some additional property later that year after the DPDC accorded' approval for revision of the Scheme but the details thereof are not available on the record produced before us.
8. The Petitioner , Asghar V irk, was the Tehsil Officer (Infrastructure) at the TMA, Bahawalpur (City), in 2016.
During his posting the Developers applied for release of a portion of their aforementioned mortgaged land. The precise allegation against the Petitioner is that he issued Certificate dated 8.6.2016 without ground check and thus aided and abetted the release of 55% of the -mortgaged land (156 marlas 39 sq.ft.) although the requisite development work had not been completed. We specifically asked the learned Special Prosecutor for NAB as to whether the Petitioner was competent to issue the aforesaid certificate, and if not, whether he would incur criminal liability on the basis of a void document. He could not give any satisfactory answer to our query .
9. Rule 36 details the procedure for release of mortgaged plots. It is reproduced hereunder for ready reference:
36. Release of mortgaged plots .---A Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority shall release mortgaged plots, in proportion to development works, on obtaining field report from an agency , which approved design and specifications about the satisfactory completion of work as follows:
(a) twenty-five percent of mortgaged plots on Hundred percent completion of water supply , sewerage and drainage works;
(b) twenty-five percent of mortgaged plots on hundred percent completion of road, bridge and footpath works;
(c) twenty-five percent of mortgaged plots on hundred percent completion of electricity and streetlight network or on full payment of charges to W APDA;
(d) fifteen percent of mortgaged plots on hundred percent payment of gas charges or on full payment of charges to Sui Gas Northern Company/Sui Gas Southern Company; and
(e) ten percent of mortgaged plots on hundred percent completion of horticulture and solid waste management works.
(emphasis added)
10. The question as to whether the development work in a housing scheme has been completed cannot be determined without technical evaluation. Therefore, Rule 36 specifically requires that a field report should be obtained from the concerned agency in this regard. So far as the instant case is concerned, a Tehsil Officer of the status of the Petitioner was neither competent nor had the expertise to make the requisite certification. In the circumstances, the reference of the TMA to the Petitioner a contrary to jaw and his Certificate dated 8.6.2016 is of no legal consequence.
11. Even if the above-mentioned legal issue is left out or consideration for the time being, there in not an iota of evidence to show that the Petitioner received any pecuniary benefit by issuing a false certificate. In its absence further inquiry is required to determine whether he is guilty or corruption or it was mere negligence and if it was the latter whether the same is culpable under the NAO.
12. The Petitioner's case is at par with that of Arshad Ali Ghumman Ex-TMO who has been admitted to post-arrest bail by this Court. The Petitioner is entitled to the same relief on the basis of rule of consistency . Reliance is placed on Muhammad Fazal alias Bodi v. The State (1979 SCMR 9), Muhammad Daud and another v. The State and another (2008 SCMR 173 ) and Gulab Khan v . Chairman NAB and another (2020 SCMR 285 ).
13. The case against the Petitioner is entirely based on documentary evidence which is in the possession of the prosecution. There is no possibility of his tampering with it. Further , investigation to the extent of the Petitioner has been completed. Since the trial is not likely to be concluded in the foreseeable future, no useful purpose could be served in keeping, him behind the bars for an indefinite period.
14. In view of the foregoing, this petition is allowed. The Petitioner is admitted to post-arrest bail subject to his furnishing pail bonds in the sum of Rs.20, 00,000/- (Rupees two million) with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judi.) of this Bench.