Through this single order , we intend to decide the above mentioned writ petitions filed by the petitioners seeking their post arrest bail in Investigation No.1(61)/HQ/992-NAB-L dated 11.10.2019, however , through Writ Petition No. 16367 of 2020, the petitioners have sought pre-arrest bail.
2. Allegedly , the petitioners in connivance with each other defrauded members of Co-operative Society namely . The Professional Co-operative Housing Socie ty, Limited, Lahore". The allegations of misuse of authority and criminal breach of trust were in addition to that.
3. Learned counsels for the petitioner , namely , Ch Shahid Mahmood contended that the petitioner has no nexus with the crime; that on ground' of arrest finds support from the material collected during the investigation; that the case against the petitioner was replete with doubts and such debt can also be extended even at bail stage; that the petitioner being president of the society was only a signatory to the cheques executed in favour of the Asian Developers and no mans-rea can be attributed to the petitioner , it particular , when no recovery was effected from him, Concluding his arguments, learned counsel submitted that it was a civil dispute converted into criminal action on the basis of malice, National Accountability Bureau has no jurisdiction and the physical custody of the petitioner was not required to the investigating in complete, thus, his detention for indefinite period agency not serve any purpose to the prosecution, fin particular , when the investigation is complete, thus, the petitioner may be released on bail.
4. Learned counsel representing Qaiser Mehmood petitioner adopted the same arguments with the addition that the petitioner was Finance Secretary of the society and no material whatsoever was collected by the investigating agency showing his connectivity with the above crime in any manner and that as his psychical custody was not required, he may be released on bail.
5. Learned counsel for the petitioners including Muhammad Ilyas and Yasir Hayat Tarar argued that they being developers entered into agreement with 'The Professional Co-operative Housing Society , Limited Lahore" to develop and of the society and to execu te the project at site; that prices were enhanced with consensus of the parties by way of amended agreement, that after December 2018 no practical Work was possible as the matter was pending with National Accountability Bureau; that till date, 358 kanals of land stands transferred in favour of the society; that the petitioners themselves were the aggrieved persons as value of the transferred properly is Pore than the amount received by the firm from the society; that the no mens-rea has been attributed to any of the petitioners; that even their individual it has not been determined by the investigating agency; that no recovery was effected from the petitioners; that they were behind the bars since arrest and their continuous detention for indefinite period would be unfair . Adds that no body can be detained in jail by way of advance punishment and that the case of the petitioners, in the circumstances, needs thorough probe, therefore the petitioners may be released on bail.
6. In writ petition No.15357 of 2020, learned counsel for the petitioners submits that initially the payments were made by their predecessors and that they were elected as office bearers of the management committee for a term of three years commencing from December 2017 to 2020 and all the attributed payments were made by the petitioners under the law/rules, thus no offence was made out; that the complete mechanism to deal. stitch like matters has been provided in Co-Operative Societies Act, 1925 but the National Accountability Bureau on the basis of mala fide converted this civil dispute into criminal action without any convincing/cogent evidence showing connectivity of the petitioners in the crime in any manner; that no incriminating Material is available on record; that during the investigation no recovery was effected from the petitioners, thus, sending them behind the bars at tires stage would not advance the case of prosecution and this would be a colour of ludicrousness if they are sent to jail for sometime by dismissing the instant petition so as to enable them to come out of jail on post arrest bail and prayed for the confirmation of ad-interim pre-arrest bail earlier granted to them.
7. Learned Special Prosecutor for NAB opposed these petitions with vehemence and submitted that if was a mega scam wherein all the petitioners in league with each other deprived more than eight hundred members of the society of their hand-earned money equivalent to Rs.800 million; that till date, no member was allotted even a single plot by the society despite receiving the does outstanding against the members; that the layout plan was not approved; that the amended agreement with the developers was executed/completed without permission of the co- operative department: that there were serious violation of the agreement entered into between the society and the developers; that the value of the land transferred in favour of the society is much less than the amount received by alt the petitioners in connivance and in league with each other; that the recoveries were yet to be effected from the petitioners including Muhammad Imran, Nafees Ahmad and Muhammad Saleem and in particular , they failed to establish that their it arrest was tainted with mata fide; that there was sufficient incriminating material available on record showing involvement of the petitioners in this scam, therefore, all these petitions are liable to be dismissed.
8. We have given ancient hearing to the learned counsel for the petitioners and the Special Prosecutor for NAB and perused the record with their able assistance.
9. A review of the record demonstrates that initially a society , namely . "The Fine Co-operative Housing Society was registered under Registration N0, 1349 on 23.11.1989. The society remained dormant for about twenty five years and it was under the control of the co-operative department till 07.2.2014. The area of its operation was Lahore city, However , as a result of special general meeting, the name of the society was changed on 27.12.2014 as The Professional Co-operative Housing Society , Limited, Lahore. The area of its operation was also extended throughout the Punjab. The by-laws of the society were also amended. The objects of the society were to promote the economic interests of its members on the principle of co operation, self help, on no profit or no loss basis. The society launched a project in the Wine and style of "Lahore City Garden". If was advertised in the national newspaper . To execute the project, the society entered into an agreement with the firm "Asian Developers". The record divulged that the society advertised in the "Daily Express" for the appointment of land provider/builders/private land developers for developing land and plots. A perusal of the advertisement suggests that the society wanted a land Provider having reasonable experience in land purchase and land development but surprisingly , the society entered into an agreement with the Firm, namely , "Asia n Developers" which came into being in the year 2015, meaning thereby it has got no such experience prior to the agreement. The matter does not end here, one of the managing partner i.e. the petitioner Muhammad Ilyas was a member of executive committee of 'The Professional Co-operative Housing Society , Limited, Lahore till 06.01.2015 and became the managing partner of the of the "Asian Developers." after 3/4 days even prior to proper resignation from such society . To maintain transparency , no effort seems to have been made by the office bearers of the society without inviting any other competitors or the bidders and only after the advertisement referred to above which appeared to be a mere formality approved the project in favour of the developers, The petitioners including Muhammad Ilyas and Yasir Hayat Tarrar were the managing partners of the said firm, The three years time was agreed between the parties for the completion of the project and according to the agreement dated 22.06.2015, the developers had to purchase land within the area of mauzas, Jia Bagg a and Karyal initially , the price of raw hid per; canal was settled between the parties as Rs 9,50000/-, thereafter , the developers wrote a letter to the society' for the increase /enhancement of price for the reasons described in the said letter and then the parties agreed to increase the price Per kanal from Rs.9,50,000/-, to Rs.25,00,000/- to be reckoned from 01.7.2016 to 30.6.2017 and, thereafter , at the rate of Re.30,00.,000/ - per kanal. This amendment of the contract was neither laid before the Registrar Co-operative Societies nor brought into the knowledge of the competent authority . The parties amended clause 14(2)(1) or the original agreement. W e are tempted to re-produce the said stipulation for ready reference: "14. Payment of plots to second party (Developer)
1) xxxxx.
2) xxxxx.
(i) It s understood that the second party he Developers) will purchase land for the development of the housing scheme and transfer the land in the name of First Parry in segments. It is awed that 57.6 percent of the agrees price of the plot will constitute price of land and 42.4 percent of the agreed price will cover the development charges. It is assumed that an average of four (4) kanal developed land will be available from an acre of raw Land after leaving space for roads, parks, public spaces etc. Therefore, a payment equivatent to land payment (57.6 percent) of four kanal of residential plots will become due upon transfer of one (1) acre of raw land to the society .
For further clarification is done in numeric as under: Price of One kanal of Developed plot Rs. 3,300,000/- 62.5 percent payment against land= Rs. I,900.800/- Payment due against one (1) acre land= 57.5 percent of 4 kanal plots payments=Rs.7,603,200/- Conclusion: The first party will pay Rs.. 7.603,200/- to the second party on each transfer of one acre land in, the name of PCHS by the land provider and land developers.
10. The parties amended the agreement dated 22.6,2015 to the extent of Clause-14(2)(1), in the following manner: "Clause-14*2)(1)" Price of ruin and measuring one kanal to be paid by the first party to the second party for the period commencing from 1st July , 2016 to 30th June, 2017 be Rs.25,00.000/- (Rs. 25) lac) per kanal. Where-alter for the period commencing from 1st of July, 2017 and onward will be paid Rs.3000,000/- (Rs. 3O lac).
These revised and amended rates mentioned in this agreement are applicable at once.
11. If clause-14(2) of both the agreements is conjunctively read, it appears that the parties have entered into amended agreement in a haphazard manner without can realizing the contents of clause-I4 of the original agreement, its spirit and intent. No other amendment/change or substitution was ever made or claim to have been made by the petitioners regarding any stipulation of original/ amended agreement.
12. Leaving aside the condition of reasonable experience, no convincing reason or material is available on the record for the enhancement of the price of the plots except photostat copies of certain letter pads which depicted the market price of the raw land in the area. The investigating agency exam ined/interrogated Qaiser Aleem proprietor of "Hussain Nagar", Muhammad Javaid owner of "Al-Rehman Associates', whereas, "Butter Associates was owned by Ch. Tariq and Mashallah" Associates was being run by Ch. Muhammad Riaz. All the four got recorded their statements under section 161, Cr.P.C. and specifically mentioned that their letter pads were misused. All those latter pads were nor issued by their respective offices. In short, the certificates produced by the developers to justify the enhancement of price were fake. We have gone though those certificates/photostat copies and observed that one of the certificate issued by "Butter Associates" is neither signed nor sealed by the proprietor or any authorized person. Whereas, the certificates of 'Al-Rehman Estates Developers" and "Hussain Nagar' also have no seal /stamp. We may mention at the cost of repetition that the society and the developers entered into agreement regarding Mauzas "Jia Bagga" and Karyal but all these certificates even if believed or relied upon ore not for the said areas, rather Mauzas "Jaido" and "Kung Sharif" in addition to Jia Bauzas find mentioned in these certificates. These two mauzas are not mentioned in the basic agreement for the purpose of development.
13. At this stage, we may mention that according to the agreement entered into between the parties, the society was bound to make payment to developers after transfer/ possession of the land. Till date, not even a single plot has been allotted to only of the member , submitted in the learned special prosecutor for NAB and learned counsel for the petitioners could not controvert the said aspect. Admittedly , the layout plan is yet to be approved. The Lahore Development Authority declared the society as illegal for such reason and the Court was apprised that the society has now applied to preliminary permission council to remove the bottle necks. Learned counsel for the petitioners referring to the provisional allotment letters argued that it was, in fact, a reservation of the rights of the members concerned but this submission find no support from the agreement which has got no such stipulation and further enshrined that no plot can be allotted to any member without approval of the layout plan. The record further highlights that the developers claimed to have purchased 56 pies, so far, and transferred the some in favour of the Society . The investigating agency recorded statement of Syed Zulfiqar Ali Registry Moharrir and secured the attested copies of 54 sale deeds. A carefu l calculation of the amount incurred by the developers for the purchase of said land comes out to Rs.1648517451/- much less than the price paid by the office bearers of the said society in advance to the Asian Developers. The material available on record suggested that office bearers of the society misused their authority by ignoring agreement between the parties, also against the object of the society . The record also divulged that office bearers of the society for the period from 2014 to 2017 made payment of Rs.533.65 million to the Asian Developers wherea s, their successors including Imran Shah, Saleem and Nafees paid Rs.277.58 million to the developers. The society registered twenty two hundred members. Later on, 1390 committed default leaving behind eight hundred and ten active members for which more than five hundred kanals land was required but assertedly 359 kanals land was purchased by the developers not sufficient to cater the needs of the members despite the expiry of the completion period i.e. 22.6.2018.
14. Learned counsel representing Yasir Hayat Tamar , petitioner mentioned that he was cardiac patient and also suffered from diabetes mellitus, hypertension and backache. In support of his contention, certified copies have been appended with the petition but no convincing material was available on record suggesting that any of the disease was hazardous or fatal to his life or that the petitioner cannot be treated inside jail or his detention in jail could adversely effect his health.
15. It is settled by now that deeper appreciation of evidence cannot be undertaken at this stage and the Court only has to sift the available material in a tentative manner . The witnesses examined by the investigating agency supported the version of the complainant suggesting involvement of the petitioners in this scam. The creation of the society then its re-activation after about twenty five years, the manner of exercising authority by the then/ present office bearers in making payments to the builders, then amending the original agreement to justify the increase/enhancement in the price suggested a strong nexus of the petitioners with each other and with the above crime. No performance guarantee of the developers as per agreement is available on record. Till date the members of the society are without any plot or possession. The proposed land of the society was visited by the investigating agency which found that it was deserted land till the day of visit suggesting that no development was made by the developers The investigating agency has collected sufficient incriminating material against the petitioners regarding their culpability , thus, we are not inclined to exercise our discretion in to favour of the petitioners.
16. In view of the discussion made above, the titled petitions are dismissed, being meritless.