Through this common order , we propose to decide the titled constitutional petition filed by petitioner Almas Ahmad seeking pre arrest bail along with the following petitions; i) Writ Petition No.57412/2020 filed by Javed Rafiq seeking pre-arrest bail, ii) Writ Petition No.13458/2021 filed by Khawaja Irshad seeking pre-arrest bail, iii) W rit Petition No.13462/2021 filed by Dr . Khan seeking pre-arrest bail, iv) W rit Petition No.18034/2020 filed by Naveed Murad seeking post-arrest bail, v) Writ Petition No.66213/2020 filed by Muhammad Imran, Muhammad Sufyan and Muhammad Asim seeking post- arrest bail, vi) W rit Petition No.1856/2021 filed by Shaukat Hussain Baloch seeking post-arrest bail, vii) W rit Petition No. 3050/2021 filed by Ijaz Hussain seeking post-arrest bail, viii) W rit Petition No.3183/2021 filed by Muhammad Amin and Khurshid Ahmad seeking post-arrest bail, ix) W rit Petition No.6476/2021 filed by W aseem Ahmad seeking post-arrest bail, These petitions are arising out of Accountability Court Reference No.11/2019 dated 13.02.2019 titled "The State v.
Naveed Murad and others".
2. Succinctly , the accusation against the petitioners is that on the complaint filed by the Chairman National Highway Authority with the allegations of misuse of authority and misappropriation of gove rnment funds, the investigation was authorized vide letter No.1(61)HQ/ 944/NABL dated 09.08.2018 and during investigation, it revealed that the petitioners, in connivance with each other , made payments to fake affectees against structures in the project of NHA namely , Dual Carriageway of N-5 TMPPWP-R YK. stretched between Ubrao- Rahim Yar Khan and Rahim Yar Khan-T aranda Muhammad Panah to Bahawalpur commenced in year, 1993 and thereby embezzled an estimated amount of the public money of Rs.60-Million. It was further alleged that after acqu isition process, the land owners, in connivance with the officials of the Revenue Department and the National Highway Authority Department, received the amount of award against the acquired land in excess to their entitlement by showing it as commercial one instead of agricultural land.
3. We have heard learned counsel for the petitioners as well as the learned Special Prosecutor for NAB and perused the available record.
4. The respective role of the petitioners as alleged by the prosecution is as under:- PRE-ARREST BAILS i) Petitioner Almas Ahmad was serving as Tehsildar Revenue Department at the time of acquisition by NHA in Mouza Tatar Chachar . ii) Petitioner Javed Rafiq was serving as Naib Tehsildar Revenue Department Khanpur at the time of acquisition by NHA in Mouza Tatar Chachar . iii) Petitioners Khawaja Irshad and Dr. Khan were saddled with the responsibility of receiving an amount of Rs.11,13,190/- and Rs.28,86,380/- for their respective pieces of agricultural land by showing it as commercial one against their actual entitlement of Rs.2,20,776/- and Rs.3,16,147/- respectively .
5. It divulges from the record that the National Highway Authority initiated the process of acquisition in year, 2003 for the project of Dual Carriageway in Rahim Yar Khan and acquired 139-Kanal of land in Mouza Tatar Chahar , which was published in the government gazette on 22.11.2003. The District Price Assessment Committee held meeting on 26.06.2007 and made assessment of 23-Kanal and 11-Marla land as commercial but the Board of Revenue referred the matter back to the said Committee for recommendation of fair market value of the relevant time within the parameters of law whereupon the District Officer (Revenue)/District Collector , Rahim Yar Khan along with other revenue staff visited the site on 12.10.2008, made inquiry regarding the price of land from people of the vicinity gathered there, prepared site plan and confirmed the prices proposed earlier by showing the land commercial one. In consequence thereof, the payment was made to the land owners after completion of acquisition process in accordance with law for the project already completed.
6. Petitioners Almas Ahmad and Javed Rafiq were serving as Tehsildar and Naib Tehsildar , Revenue Department Khanpur at the time of acquisition. They were alleged to have forwarded the report generated by the Halqa Patwari and Girdawar qua making assessment of rates of the acquired land as commercial instead of agricultural land.
Petitioners Khawaja Irshad and Dr. Khan were alleged to have received an amount of Rs.11,13,190/- and Rs.28,86,380 respectively , in excess to their entitlement for their respective pieces of land by showing it as commercial one. They have already joined the investigation but no specific documentary evidence qua gaining pecuniary benefits has been brought on record against them and even no incriminating material could be recovered from them. Furthermore, the allegation of receiving award in excess to the existing rates of the land acquired for the aforementioned development project, was found to be correct, as is evident from the aforementioned assessment report, which was made twice and the last one, after site inspection/verification qua existing rates of the property by the revenue officers having been found ditto to the previous one. Furthermore, the award was sanctioned after site inspection, the payment was made to the affectees/land owners and the project has already been completed since long. Keeping in view of the aforementioned facts and circumstances of the case, the possibility of mala fide intention and ulterior motives for false implication of these petitioners in this case, cannot be ruled out of consideration. In the commending circumstances, insistence of the investigating agency upon arrest of the petitioners appears to be unnecessary and, thus, smacking of bad faith.
POST ARREST BAILS i) Petitioner Naveed Murad was serving as Land Acquisition Collector of the project from 02.09.2005 to 01.09.2006 and 25.05.2009 to 20.06.2012. He has filed 4th petition seeking the selfsame relief, earlier his Writ Petition No.17460/2019 was dismissed as withdrawn after arguments at length vide order dated 15.05.2019, the second Writ Petition No.61885/2019 was dismissed as withdrawn on reconsideration vide order 21.10.2019 and the third one bearing W rit Petition No.72860/2019 was disposed of being not pressed vide order dated 27.01.2020. ii) Petitioner Shaukat Hussain Baloch was serving as Director (Land Management and infrastructure) in Central Zone in the National Highway Authority . He has approached this Court third time, earlier his Writ Petition No.15260/2019 was dismissed as withdrawn after arguing the case at length with the direction to the learned trial Court to conclude the trial within six months vide order dated 15.05.2019. The second one bearing Writ Petition No.78379/2019 was disposed of being not pressed vide order dated 27.01.2020. iii) Petitioner Ijaz Hussain was serving as Branch Manager United Bank Ltd. Chak No.25 B.C. Bahawalpur and he was alleged to have opened fake bank accounts for depositing of misappropriated amount of Rs.39-Million. This is the petitioner's second petition seeking the selfsame relief, earlier his Writ Petition No.7737/2019 was dismissed being not pressed after arguing the case at some length vide order dated 12.03.2019. All the aforementioned petitions have been filed on the humanitarian ground of delay in the conclusion of trial. iv) Petitioners Muhammad Imran, Muhammad Sufyan and Muhammad Asim had allegedly , got declared their agricultural land being commercial one and received award in excess of their entitlement. v) Petitioners Muhammad Amin and Khurshid Ahmad were serving as Patwari/A cting Girdawar and Patwari in Mouza Chahar and they were saddled with the responsibility of consolidating false land classification report contrary to the record of Revenue Department and declared the agricultural and residential land as commercial, whereupon the beneficiaries obtained huge pecuniary benefit. vi) Petitioner Waseem Ahmad was serving as Land Acquisition Collector and he was alleged to have prepared false classification of land in Mouza Tatar Chachar declaring the agricultural/residential land as commercial property and send the said false report to the District Officer Revenue Rahim Yar Khan for approval. These petitioners have approached the Court first time.
8(sic.) Fist of all, we would like to take up the case of petitioners, Naveed Murad, Shaukat Hussain Baloch and Ijaz Hussain. After dismissal of earlier bail petitions by this Court, as mentioned above, these petitioners have tried their luck on the sole ground of delay in the conclusion of trial with the submission that they are facing the agony of incarceration for a continuation period of last about 2-1/2 years but till-date the conclusion of trial is not in sight for further two years. In compliance of our direction with regard to the reasons for delay in the conclusion of trial, learned trial Court has submitted a report dated 12.02.2021 in detail stating that:- `The prosecution has cited 93-witnesses who are supposed to give oral as well as documentary evidence. The reference comprises of 10-folders and hefty volume of documentary evidence is to be received in evidence against the 20-accused persons.
Currently , 37-criminal cases/references are pending adjudication in this court. Among them the seniority No. of case in hand is 30. In many cases, the prosecution evidence is being recorded and in some cases the evidence of IOs is being recorded and such like cases are at the verge of conclusion.
The delay occurred due to the hefty volume of investigation record, witnesses and number of accused persons.
As per record of the reference the prosecution has cited 93-witnesses are likewise, to produce hefty volume of documentary evidence -- In view of all attending circumstances, this Court is hopeful to bring the case toward conclusion as early as possible. However , it least Twelve (12) to Eighteen (18) months are required for the conclusion of the trial, provided full participation and co-operation of all the accused and prosecution is ensured . Now, the case is fixed for attendance of the accused persons---.
9. After careful perusal of the said report, learned Law Officer has no second opinion to differ with the current stage of the trial and that there is no prospect of its early conclusion and in such state of affairs, the petitioners cannot be kept behind the bars for an indefinite period. The investigation process is complete and at this stage, physical custody of these petitioners is no more required to the National Accountability Bureau authorities for further investigation. These petitioners are facing incarceration for a continuous period of 2-1/2 years without any substantial progress in the conclusion of trial especially , when the learned trial Court requires 1-1/2 more years for conclusion of the trial subject to full cooperation of the prosecution as well as the accused. From the aforementioned facts and circumstances of the case, we are persuaded to hold that these petitioners are entitled to the relief sought for on the basis of humanitarian ground of their continuous incarceration without conclusion of trial.
7(sic.) Now, let the case of remaining petitioners namely , Muhammad Imran, Muhammad Sufyan, Muhammad Asim, Muhammad Amin, Khurshid Ahmad and Muhammad Waseem, who have approached the Court first time be taken up for consideration on merits. Out of them, petitioners Muhammad Imran, Muhammad Sufyati, Muhammad Asim and Muhammad Amin were alleged to have received award in excess to the existing rates of their agricultural property by showing it as commercial one whereas, petitioners Khurshid Ahma d (Patwari), Muhammad Amin (Acting Girdawar) and Waseem (Land Acquisition Collector) wire alleged to have generated report in favour of the land owners but as a matter of fact, the revenue authorities prepared the aforementioned report after site inspection and inquiry from people of the vicinity , which was supplemented by the site plan showing shops, petrol pump and other commercial activities there. These petitioners were arrested in this case on 21.10.2020 and during investigation no incriminating material could be recovered from them. They have already joined the investigation and their physical custody is no more required to the police for further investigation. In the commending circumstances, the case against these petitioners requires further probe and inquiry into their guilt by the learned trial Court after recording the evidence and, thus, they are entitled to be released on post arrest bail.
10. In this view of the matter , Writ Petitions Nos.57410 and 57412/2020 filed by petitioners Almas Ahmad and Javed Rafique and Writ Petitions Nos.13458 and 13462 of 2021 filed by Khawaja Irshad and Dr. Khan are allowed and the concession of ad interim pre arrest bail already granted to them is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.500,000/- (five lac) each with two sureties each in the like amount to the satisfaction of learned trial Court.
11. Writ Petition No.18034/2020 filed by petitioner Naveed Murad, Writ Petition No.66213/2020 filed by petitioners Muhammad Imran, Muhammad Sufyan and Muhammad Asim, Writ Petition No.1856/2021 filed by petitioner Shaukat Hussain Baloch, Writ Petition No.3050/2021 filed by Ijaz Hussain, Writ Petition No.3183/2021 filed by petitioners Muhammad Amin and Khurshid Ahmad and Writ Petition No.6476/2021 filed by Wasim Ahmad are allowed and they are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.500,000/- (five lac) each with two sureties each in the like amount to the satisfaction of learned trial Court.