AMJAD ALI SAHITO, J. By this common order, we intend to dispose of captioned Constitution Petition(s) together as the same arise out of the same Reference. The relevant facts, as set out in Reference No.27 of 2018 against Petitioners, are hereby reproduced as follows:-- ("The Petitioner(s) hereinabove referred to as in the facts being accused Nos.1, 2 and 3")
2. That allegation against Petitioner Roshan Ali Shaikh at Paragraph No.11 is that "the accused No.3 Roshan Ali. Shaikh remained posted as Executive District Officer (EDO), City District Government Karachi from 25.02.2010 to 14.02.2011, DCO, CDGK from 30.09.2011 to 09.11.2011) and Commissioner Karachi Division from 09.11.2011 to 08.10.2012 (He misused his Authority in violation of Section 24-A, Colonization of Government Lands (Amendment) Act, 2009, by misreporting to Secretary (LU) by not fully clarifying the title of land which carried already issued a lease for 30 years and encroachment on the said area) in addition to the violation of the purpose of the lease in connivance with the land mafia. Furthermore, vide letter dated 02.07.2012 accused No.3 submitted his report and has malafidely recommended to Secretary (LU) that mutation entry is as per law and there appears no lapse. All the above-mentioned facts already reported to him by AEDO Mustafa Jamal Qazi vide letter dated 01.11.2010 and same was ignored by the accused. Based on the letter dated 02.07.2012 of accused, the Secretary (LU) floated summary to the Chief Minister Sindh for seeking post-facto approval of the letter dated 29.09.2011 ("in which no objection was issued by Secretary (LU) to DCO for the deposit of balance amount and keeping entry in Record of Rights)".
3. The allegation against Petitioner Fazul-Ur-Rehman at paragraph No. 10 is that "accused No.2 remained posted as District Coordination Officer , City District Government Karachi (CDGK) from 25.02.2010 to 31.12.2010 and as Administrator CDGK from 31.12.2010 to 18.06.2011. He being DCO CDGK/ Administrator misused his Authority as he, without considering the status of land, allotted to KMC for wool washing tanneries in 1960, made a report dated 04.11.2010 that the land was resumed in the year 1993 by LU Department without issuing notice to them and further assuming the allotment around for 30 years requested for its renewal. Further, he, being an Administrator, in the absence of Council on 20.10.2010 passed the Council Resolution No.14 allowing the KMC officials to regularize the land based on the illegal possession".
4. The allegation against Petitioner Muhammad Waseem in Paragraph No. 15 is that "accused No.7 Muhammad Waseem posted as Director Land KMC. During his tenure as Director Land KMC, misused his Authority by issuing illegal authorization letter dated 05.11.2013 and 17.04.2014 to accused No.10 Mashkoor Khan and accused No.12 Sohail Yar Khan, respectively, for the execution of illegal lease deeds in the area of Wool-Washing Tanneries and allowed the concerned Deputy Director to appear before Sub-Registrar on behalf of KMC for the execution of illegal lease on the said land based on the purported auction in the years 1971 to 1975 x 64 illegal leases were executed by the concerned Deputy Directors based on the said letter issued by the accused".
5. Mr. Makhdoom Ali Khan, advocate, representing Petitioner (Roshan Ali Shaikh) in C. P. No. D-4295 of 2020, inter alia contended that petitioner enjoys unblemished service record with good reputation in the civil Services and has falsely been implicated in a frivolous and malicious Reference; the charge against the Petitioner is groundless; allegations against the petitioner are vague; there is no likelihood of conviction of the petitioner; the order of Collector Karachi dated 31.12.1960 did not mention tenure of the allotment; the subject land was therefore not leased for 30 years; there is no evidence on the record that the subject land was not availed for its purpose; the 'subject land was never resumed; there is no resumption order available on the record; there is nothing on record to show that the BoR initiated any proceedings for resuming of the subject land; the legal opinion dated 14.03.2019 confirms that Section 24-A of the Colonization Act "is not applicable to the subject land; the subject land is not resumed under the Colonization Act; the letter dated 3I.O5.2012 and 02.07.2012, respectively, do not show any mala fide and dishonest intention on the part of the Petitioner; that Petitioner merely reiterated the title of subject land as available in the record of rights; that the petitioner issued letters on the basis of report submitted to him by the accused No.4 and the Assistant Commissioner; that petitioner was required to clarify the status of the subject land on the mala fide pretext that it was for onward transmission to the NAB authorities; the report was in fact induced, contents of which had been utilized to again Post Facto Approval through the second summary floated to the Chief Minister, Sindh; that the Reference is completely silent as to the observations made through order dated 15.02.2017 whereby the Reference filed previously had been returned and NAB was directed to reinvestigate the matter in light of, inter alia, the Suit No. 245 of 2017 under which the letter withdrawing entry in favour of KMC from the record of rights was suspended; that Transparency International Pakistan [complainant] had sent a letter to the Chairman NAB on 02.10.2019 stating that (i) NAB had failed to conduct the investigation properly by "giving clean chit to all 103 beneficiaries of the illegal/fake leases"; and (ii) Reference had been wrongly filed against the petitioner who was not even posted as the Commissioner when the entry was made in the record of rights; that entries in the record of rights are presumed to be true and strong evidence is required to rebut such presumption (Section 52 of Sindh Land Revenue Act, 1967); that there is also presumption attached as to the genuineness of documents kept under any law under, Article 92 of the Qanun-e-Shahadat Order, 1984; that the petitioner's actions are protected under Section 181 of the. Sindh Land Revenue Act, 1967, which bars any prosecution against the revenue officer for anything done in good faith; that.the letter dated 01.11.2010 furnished by Mr. Mustafa Jamal Qazi (PW) was directed to the petitioner when he was posted as the EDO Revenue; and whereas, the petitioner was required to clarify the title of the land on 20.06.2012, as the Commissioner of Karachi; this (i) an independent task; (ii) at an interlude of over one and a half years; (iii) could only be complied with by assessment of the record of rights; that letter dated 01.11.2010 furnished by Mr.Mustafa Jamal Qazi (PW) was an attempt to legitimize the regularization already done by him and the then Administrator, Karachi, a transaction in which the Petitioner was bypassed; that three accused persons Shoukat Hussain Jokhio (accused No.4) whose report was forwarded by the Petitioner to the BoR/NAB, Saif Abbass (accused No.6) and Mohammad Shoaib (accused No.16) have been already granted bail on hardship and the fact that the Reference has been pending for more than two years and no witness out of 56 PWs have been led so far; such a trial is unlikely to conclude in near future; this is despite clear instruction from this Court to expedite the trial; that accused No.4 whose report was forwarded by the Petitioner ("with similar allegation as against the Petitioner") has been granted bail; that Nadeem Khokhar (accused No.5) (Mukhtiarkar who apprised the Deputy Commissioner (accused No.4) of the status of subject land) was granted ad-interim pre-arrest bail by the Supreme Court of Pakistan on 2I.O9.2020 after the same had been recalled by this Court; that there is no allegation with regard to the obtaining of , any financial gain by the Petitioner; that there is no cogent, reliable and collective evidence available with the prosecution to show- that the petitioner obtained any kickback or commission from anyone as the land stays in the name of government institution; that there is no allegation that Petitioner had played any role in any of the allotments with regard to the subject land; that there is, no allegation that Petitioner had played any pivotal role while entering into mutation entry in favour of KMC; that there is nothing on record which suggest any mens rea or criminal intention on the part of the Petitioner; that offence of corruption and corrupt practices within the earnings of Section 9(a) of National Accountability Ordinance, 1999, is not an offence of strict liability; that the mens rea for an offence under Section 9(a) of National Accountability Ordinance, 1999, is found in two elements first one is "conscious misuse of authority"; and second one is "illegal gain or undue benefit'. Lastly, learned counsel prayed that the petitioner may be granted post-arrest bail. Learned counsel has relied upon the case-law reported as 2005 SCMR 468 at Page 653-654-A Re.Ramesh M. Udeshi v. State; 2005 MLD 1854 at Page 1858-A(DB/SHC)
Re. Ramesh M. Udeshi v. State, 2006 YLR 1468 Re.Malik Salah-Ud-Din Dollar v. The State, 2008 SCMR 1118 at 1130 Re. The State v. Idrees Ghauri; PLD 2008 SC 166 at 176B Re. Mansur-ul-Hague v. Government of Pakistan; PLD '2016 SC 276 at Page 298- - 299D Re. State v. Anwar Saif Ullah Khan, 2017 PCr.LJ 674 at 682 Para-11 (DB/IHC) Re.Muhammad lqbal v. State, 2017 PCr.LJ 854 at 917-J (SB/IHC) Re.Hamid Saeed Kazmi v. State, 2018 PCr.LJ 1607 at 1631 Para 20 (DB/SHC) Re.Abid Wali Khoso v. National Accountability Bureau 2019 PCr.LJ 582 at 591 C (DB/LHC). Re. Qamar-Ul- Islam v. National Accountability Bureau, 2020 MLD 696 at 702D and 702E (DB/BHC) Re. Umar Mukhtar v. The State, PLD 2001 Peshawar 80 at 85 D (FB) Re.Aftab Ahmed Khan Sherpa v. The State, PLD 2003 SC 46 at 56 B Re.Mir Munawar Ali Talpur v. State, PLD 2004 Karachi 224 at 231 A (DB/SHC) Re.Ramesh Udeshi v. The State, 2008 SCMR 196 at 199 A Re.Allah Nawaz A. Qazi v.
State, Civil Petitions 194 of 2018 and other connected matters (SC) Re. Syed Ali Raza v.
Federation of Pakistan and others, 2020 PCr.LJ 289 at 304 A (DB/LHC) Re.Hafiz Mian Muhammad Nauman v. Director General NAB, PLD 1968 SC 281 at 285 B Re.Muhammad Akbar v. State, 1982 SCMR 988 at 990-991 B Re.Abdul Haleem v. State, 2017 YLR 288 at 290 C (DB/SHC) Re. Muhammad Ashraf Khan v. Province of Sindh, 2006 SCMR 1023 at 1025 B Re.M.D Bank of Punjab v. Syed Shahzad Hussain, 2007 SCMR 330 at 336 D Re.Abdul Majeed Zafar v. Governor of the Punjab, 2007 SCMR 1451 at 1454 A Re.Asim Khan v. Zahir Shah, PLD 2010 SC 483 at 543 LL Re.Justice Khurshid Anwar Bhinder v. FOP, PLD 2010 SC 623 at 630 B Re.Ali Muhammad v. The State, 2003 YLR 1513 at 1514 B (DB/SHC) Re.Karachi Cooperative Housing Societies Union v. Government of Sindh, 2008 PCr.LJ 967 at 970-971 B (DB/SHC) Re.Khalilullah Jan Sarhandi v. Chairman, NAB, 2019 YLR 689 at 698 C (DB/SHC) Re.Abdul Qadir Memon v. Director General, NAB, 2020 YLR 1571 at 1586 I (DB/LHC)'
' Re. Muhammad Shahbaz Sharif v. National Accountability Bureau, PLD 2008 SC 438 at 441 A Re.
Muhammad Nawaz v. State, 2017 PCr.LJ 674 at 683-684 F (DB/IHC) Re. Muhammad lqbal v.
State, 2018 PCr.LJ 1607 at 1631 D (DB/SHC) Re. Abid Wali Khoso v. National Accountability Bureau, 2019 PCr.LJ 582 at 593 Para 14 (DB/LHC) Re: Qamarul-Islam v. National Accountability Bureau, PLD 2020 Islamabad 177 at 183 D (DB/IHC) Re. Sheikh Imran-ul-Haque v. Federation of Pakistan 2012 YLR 2809 at 2819 E (DB/SHC) Re.Hassan Jameel Ansari v. National Accountability Bureau 2020 YLR 1370 at 1389 G (DB/LHC) Re.Muhammad Shahbaz Sharif v. National Accountability Bureau, C.P. 7714 of 2019 at Paragraph 7 (P.313 of file-Relevant at 323), PLD 2020 -SC 456 at 487, 498 DD, 500 EE, 502 FF and 505 HH Re.Salman Rafique v. NAB, 2001 SCMR 1040 at 1046 E Re.Anwar Satfullah Khan v. The State, 2015 SCMR 1575 at 1584 H Re.Rafiq Haji Usman v. Chairman, NAB, 2017 PCr.LJ 674 at 684 paragraph 16(DB/IHC) Re.Muhammad lqbal v. State, PLD 2020 Islamabad 177 at 183 paragraph 9 (DB/IHC), Re. Sheikh lmran ul Hague v. Federation of Pakistan, PLD 2020 Lahore 191 at 201 E (DB) Re.Muhammad Subtain Khan v. National Accountability Bureau, 2020 SCMR 956 at 958 D Re.Mukaram v. State, 2020 SCMR 971 at 974 D Re.Muhammad Faisal v. State, 2012 YLR 2809 at 2815 A (DB/SHC) Re.Hassan Jameel Ansari v. National Accountability Bureau, 1995 SCMR 387 at 408 I Re. Sikandar A. Karim v. State, 2020 SCMR 971 at 973B-TAB 16 Re.Muhammad Faisal v. State, Civil Petitions 194 of 2018 and other connected matters (SC), 1984 PCr.LJ 2779A (SB/LHC) Re.Shahadat All Khan v. State, 2013 PCr.LJ 487 at 490A (SB/LHC) Re.Ali Athar v. State, 2008 SCMR 1118 at 1134 0 Re. The State v. Idrees Ghauri, 1972 PCr.LJ 1130 at 1133 1134 (SB/SHC), PLD 1971 Karachi 937) Re.Jamot Ghulam Muhammad and 3 others v. State and another, 1985 PCr.LJ 596 at 598-599 (DB/ LHC) Re.Mazhar Hakeem v. The State, PLD 1993 SC 399 at 403 C-TAB 29 Re.Badaruddin v. Mehr Ahmad Raza, Crl. Accountability Appeal 68 of 2018 and other connected appeals (dated 08.10.2019) at Paragraphs 16, 17, 18 (DB/SHC)(PC).
6. Mr. Habib Ahmed, an advocate, I. representing Petitioner Fazul-Ur-Rehman in C. P. No. D - 4429 of 2020, inter alia, contended that Petitioner is innocent and has falsely been implicated in the instant case with mala fide intention and ulterior motives; that there are two allegations made in Paragraph No. 10 of the alleged Reference; that petitioner was fully competent vide Notification No. SOA(LG)4(23)2010 dated 09.04.2010; that Note Sheet dated 13.10.2010 was put up by PW Mustafa Jamal Qazi; he was given task as per Paragraphs Nos.3 and 4 of the Note Sheet for settlement of the issue between BoR and CDGK; that said PW presented Resolution No.14 dated 13.10.2010 to the bail-applicant [Petitioner] for approval; thus, said PW with math fide intention did: not mention anywhere in the Resolution that there is a dispute between CDGK KMC and BoR in respect of title of the land; the land resumed to BoR in the Year 1993, due to non-payment of the balance amount of Malkano; PW kept the petitioner in dark and got the approval of Resolution No.14 in a good faith; that according to law, mere approval of Resolution by the Council does not constitute .any rights, title to an individual or the KMC unless it is approved by the competent authority viz. Government of Sindh; that PW Mustafa Qazi himself wrote letter dated 01.11.2010 to EDO Revenue CDGK wherein disclosure of some facts has been inserted; that there are general nature allegations levelled against the petitioner without showing his specific role; that it has not been shown in any manner that the petitioner has accepted or obtained or offered from any person or offers any gratification directly or indirectly, that there is no evidence against the Petitioner where from it can even remotely be shown that the petitioner ever acquired or gave to any other person any illegal benefit; that PW-Mustafa Jamal Qazi was given task for demarcation, preparation, revised layout plan of Wool Washing Area; he held meetings with officers of BoR and the CDGK; per learned counsel the petitioner has not changed the status of land through Resolution No.14, the status of the land was changed in the Year 1993 through Resolution Nos. 87 and 88 by the then Administrator KMC; that there is no collective, positive, cogent and reliable evidence with the prosecution with regard that petitioner had caused any kind of loss to the government exchequer; that petitioner has nothing to do with the leases executed in favour of individuals as is apparent form the record; that subject land has resumed to Government but it was incumbent upon the KMC to utilize the land for specific purposes of Wool Washing Tanneries; that petitioner is suffering from multiple diseases, at present is unable to move and walk frequently due to ailment; petitioner is continuously visiting doctors and is permanently confined to wheelchair and the doctors at Aga Khan Hospital have advised the petitioner for lever transplantation; learned - counsel prayed' that the petitioner may be enlarged on post-arrest bail. Learned counsel has relied upon the case-law reported as 2008 SCMR 196 Re.Dr.Allah Nawaz A. Qazi v. The State, 2015 SCMR 1575 Re.Rafiq Haji Usman v. Chairman Nab and another, PLD 2003 Supreme Court 46 Re.Mir Munawar Ali Talpur v. State through Chief Commissioner, Islamabad and 2 others, PLD 2008 Supreme Court 438 Re.Muhammad Nawaz v.
The State through Chairman, NAB, Islamabad and others, 1984' PCr.LJ 2776 Re.Shahadat Khan and others v. The State, 2006 MLD 1290 Waryam v. Province of Punjab, through the Collector District, Faisalabad and another, PLD 2016 Supreme Court 276 Re., The State v. Anwar Saif Ullah Khan, 2007 SCMR 330 Re.Abdul Majeed Zafar and others v. Governor of The Punjab through Chief Secretary and others, 2005 SCMR 648 Re. Ramesh M. Udeshi v. The State, PLD 2008 Supreme Court 166 Re.Monsel-ul- Haque v_ Government of Pakistan, PLD 2001 Peshawar 80 Re.Aftab Ahmed Khan Sherpao, Ex-Chief Minister of N. W. F. P, 2008 SCMR 1118 Re. The State and others v.
M.Idrees Ghauri and others.
7. Mr. Shoukat Hayat, Advocate, representing Petitioner Muhammad Waseem in C. P. No. D - 4914 of 2020, inter alias contended that Petitioner is absolutely innocent and has falsely been implicated in the instant case with mala fide intention and ulterior motives; that initially complainant Transparency International approached the , NAB for filing Reference against the KMC coupled with one hundred eighteen peoples over illegal act as alleged with regard to Plot of land comprising 245 acres; same was returned to the NAB with certain observations; that again matter was reinvestigated and NAB authorities filed the Reference; that there is crystal clear violation of the orders of Hon'ble Administrative Judge who suggested for launching of Reference against sixteen persons but NAB has arrayed series of persons as allegedly involved in the Reference pending adjudication before the Court; that prosecution has completely misled, misrepresented and distorted the true facts regarding specific role of the present Petitioner; that Deputy Director Mashkoor Khan and Sohail Yar Khan, vide Notification dated 28.07.1994, were duly authorized to execute lease deeds; that prosecution has failed to produce any single document to show with regard to the resumption of land in question by the Government of Sindh; that there is no incriminating material available on record which would - connect the present Petitioner with the commission of alleged offence; that Petitioner has never dealt with the Wool Washing Tanneries; that admittedly. 275 acres of land was allotted in Deh Garigrio and Rehri to KMC vide order dated 31.10.1960 on payment of Malkano at Rs.2500/7 per acre to the shifting of wool washing tanneries homes etc from Lyari quarters; after payment of land price, the possession was handed over to the IKMC in the Year 1969; that land in question has never been resumed by Government of Sindh or BoR, thus, it is a fit case which requires further probe into the guilt of individuals; that petitioner has never dealt with the Wool washing land since the grant of lease dated 31.12.1960; during tenure of present Petitioner as to his posting w.e.f. 05.11.2013 to 16.07.2015, .Petitioner has only referred signatures of two Deputy Directors/Nominees of KMC to execute leases vide letters dated 05.11.2013 and 17.04.2014 respectively; that finally after approval of SMB, Finance Secretary, Finance Minister, Chief Secretary and the Chief Minister, the alleged entry was recorded on the record of rights of BoR; perhaps they have never been called for recording of their statements as provided under the Law; that prosecution has never produced any iota of material in support of the claim except a note dated 15.01.1999 by Assistant Commissioner/ SDM Bin Qaism, Karachi, who assumed that the lease period has expired in the Year, 1993, and KMC did not pursue for renewal of the same again and it was reverted back to Government of Sindh/BoR; that land was allotted on 31.12.1960 on Malkano basis and the same has never been reverted to the BoR/Government of Sindh and prior to that no notice/order has ever been served to the KMC. The prosecution has not joined Assistant Commissioner/SDM and the Secretary Finance in investigation to clarify the issue involved in the pending lis; that prosecution has failed to call for the members of the Council who passed the Resolution and auctioned the land during the period 1972 and onwards; the subject land has been auctioned after wide publication in a daily newspapers and without any objection from any quarter; that Petitioner has not been shown as beneficiary. and causing illegal loss to the government exchequer; that Petitioner in a routine and good faith has referred the names to the Sub-Registrar as nominees. of KMC for execution of the leases; that co-accused Shaukat Hussain Jokhio and Muhammad Shoeb Saif ,Abbas have earlier been granted bail when both were in custody; that all the material is based upon documentary evidence and same is in possession of the prosecution, it would be appropriate that if Petitioner is enlarged on post-arrest bail, there is no apprehension of tampering with the prosecution evidences as well; that petitioner is suffering from agony of protracted inquiry/investigation - and the trial has not been commenced since the Year 2018; per learned counsel the Petitioner may be enlarged on post-arrest bail on merits as otherwise the principle of consistency is very much applicable in the case of present Petitioner because two co-accused have already been enlarged on post-arrest bail and the case of present Petitioner is on better footings than that of co-accused whom bail has been granted.
8. Mr. Abdul Sattar Awan, advocate, representing the National Accountability Bureau as a Special Prosecutor duly assisted by the Investigation Officer NAB has strongly opposed the grant of post- arrest bail; learned Special Prosecutor has mainly contended that this is second bail application which is not maintainable under the Law as earlier bail plea of the petitioners have been declined in toto by this Court; therefore the instant constitution petitions by which petitioners are seeking post-arrest bail is against the spirit of mandatory provisions of Law; that there is strong material available with the prosecution which would connect the present petitioners with the commission of offence; that the subject land was granted on lease basis to CDGK for about thirty years lease; which was simultaneously ended in the Year, 1993, but Petitioners never approached to the Government of Sindh for resumption of the subject land; that petitioners have deliberately and willfully put the government exchequer on losses which can be adjudged by this Court as provided under the Constitution of Islamic Republic of Pakistan, 1973; that petitioners with console aim and object have fraudulently auctioned the subject land in connivance with the department even there is nothing on record to surface with regard to the renewal upon scanning documents available with the prosecution; that petitioners have caused huge losses to the government exchequer in absentia of application of rules and regulations and did not abide by the provisions of Section 24-A of the Colonization Act; that the petitioners are not entitled for the grant of any relief which they have sought through the instant constitution petitions; that it would be determined when the trial commences that what role each of the Petitioners have played, for which prosecution is able to brought on record strong, cogent and reliable evidence; lastly, learned Special Prosecutor prayed that the instant constitution petitions filed for grant of post-arrest bail may be dismissed. Learned Special Prosecutor NAB has relied upon the case-law reported in PLD 2015 Supreme Court 41 Re.
Muhammad Aslam v. The State, 2019 MLD 680 Re. Nusrat Hussain Shah v. The Chairman, National Accountability Bureau through NAB(K)/Sindh and 2018 PCr.LJ Note 10 Re. Rasool Buz Sohi v. Federation of Pakistan through Chairman NAB and another.
9. We have heard learned counsel(s) for the Petitioner(s) and learned Special Prosecutor NAB, and have gone through the material available on record.
10. After scanning record, it has been surfaced that Petitioner(s) Roshan Ali Sheikh, Fazul-Ul- Rehman and Muhammad Waseem applied for ad interim pre-arrest bail through C. P. No. D-5056 of 2018, C.P. No. D-6107 of 2018 and C. P. No. D-4732 of 2018 whereby Petitioners were admitted to ad interim pre-arrest bail; the interim pre-arrest bail granted to the petitioners was dismissed vide order dated 24.08.2020 and interim pre-arrest bail granted to them were recalled, henceforth above Petitioners filed petition for their post-arrest bail before this Court. Learned Special Prosecutor NAB argued that the pre-arrest bail applications of the petitioners were dismissed and it is their second bail application on the same set of grounds, hence it is not maintainable as there is no development at the trial of the case.
11. The principles governing pre-arrest bail and post-arrest bail are quite different. Mere dismissal of petitioners' pre-arrest bail is not sufficient reason to deprive them with the concession of post- arrest bail. The Hon'ble Supreme Court of Pakistan in the number of cases has set out the parameters of anticipatory bail and post-arrest bail, it reads as "----S.498--Pre-arrest bail, grant of---Scope, procedure, and conditions---Grant of bail before arrest was an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives---Pre-arrest bail was not to be used as a substitute or as an alternative for post-arrest bail---Bail before arrest could not be granted unless the person, sought it, satisfied the conditions specified through subsection (2) of section 497, Cr.P.C. i.e., unless he established the existence of reasonable ground leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt---Accused must also show that his arrest was being sought for ulterior motive, particularly by the police; to cause irreparable humiliation to him and to disgrace and dishonor him---Such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive from law---In the absence of a reasonable and justifiable cause, person desiring his admission to hail before arrest, must, in the first instance approach the court of first instance i.e., the court of session, before petitioning the High Court for the purpose".
12. Apart from above, the scope of bail after arrest under Section 497, Cr.P.C. has been thoroughly explained by the Hon'ble Supreme Court of Pakistan, following the principles as laid down by the Apex court divides non-bailable offences into two categories:- Offence punishable with death, imprisonment for life or imprisonment for ten years, and Offences punishable with imprisonment for less than ten years, Grant of bail in non-bailable offence following in second category punishable with imprisonment for less than ten years is a rule and refusal an exception. Bail in cases falling in the second category will be declined only in extra-ordinary and exception cases.
(i) where there is a likelihood of abscondence of accused.
(ii) where there is the apprehension of the accused tampering with the prosecution evidence.
(iii) where there is the danger of the offence being repeated the accused is released on bail; and
(iv) where the accused is a previous convict.
13. As to the contention of learned counsel for the NAB, that this is a second bail application on the same set of grounds the bail application of the petitioner is not maintainable as such he has relied upon the case , law of Muhammad Aslam v. The State (PLD 2015 Supreme Court 41) wherein the.
Hon'ble Supreme Court of Pakistan has held as follows:-- "---S. 497--- Second/subsequent application for post-arrest bail, filing of---Fresh grounds--- Scope---First post-arrest bail application filed by accused before the High Court was dismissed as withdrawn after arguments by counsel for accused at some length---Second bail application filed by accused before the High Court did not disclose any fresh' ground for his admission to bail, thus in view of the law declared by the Supreme Court in the case of Nazir Ahmed and another v. The State and others (PLD 2014 SC 241), the second bail application was not maintainable---Appeal was dismissed accordingly".
14. In the above-cited case, the Hon'ble Supreme Court has held that in first post-arrest bail, after arguing ' at length, the learned counsel for the applicant did not press the bail application and after some time he has again filed a second post-arrest bail application on same grounds which were already agitated in the first bail application 4nd in absence of fresh grounds the second bail application was not maintainable. In an identical case, this Court in C. P. No.D-8324/2019 and C. P.
No.D-5482/ 2019 after the dismissal of their pre-arrest bail observed that 'this is their second attempt for same relief, their earlier effort in this regard ended vide order dated 08.07.2019 when their petitions for pre-arrest bail were dismissed and they were taken into custody by NAB". Such order was impugned before the Hon'ble Supreme Court of Pakistan in Civil Petitions No.995 of 2020 and 1013 of 2020 Amin Muhammad Fazwani v. The NAB through its Chairman and others; wherein the Hon'ble Supreme Court of Pakistan has held that the learned High Court mistakenly considered that the petitions for bail after arrest before it, were filed in the second round of such relief and directed to this Court to decide the bail petitions of the petitioners on its own merits. It is appropriate to reproduce the above un-reported cited order as under: Learned counsel for the petitioners point out that the impugned judgment of the learned High Court mistakenly considers that the petitions for bail after arrest before it, were filed in the second round for such relief. He has referred us to the judgment of the leaner High Court dated 18.07.2019 which declines bail before arrest to the petitioners. In so holding, it reproduces the prosecution version of the evidence but without discussing how such evidence connects the petitioners with the commission of the alleged offences, it refuses bail before arrest to the petitioners: As such therefore they contend that the said order dated 18.07.2019 is not a speaking order on the merits of the case. Consequently, the observation in the impugned judgment dated 06.02.2020 by the learned High Court that no fresh ground for bail has been disclosed by the petitioners in their petitions before the said learned Court is not justified.
2. The learned counsel for the respondents submits that there is adequate evidence implicating the petitioners with the commission of offences.
3. Let this aspect on merits of the case be considered in the first instance by the learned High Court. Consequently, we return these matters for consideration by the learned High Court. The bail petitions already filed there by the petitioners shall be deemed to be pending for adjudication on merits for bail after arrest. It is also directed that learned Trial Court shall endeavor to proceed expeditiously in the conduct, of the trial, inter alia, of the petitioners.
15. In another unreported case of Syed Ali Raza and others v. Federation of Pakistan through Secretary Ministry of Law, Islamabad and others (Civil Petitions Nos. 194, 298 and 304 of 2018) the Hon'ble Supreme Court of Pakistan has held that;- 8...... With respect to the learned Judges of the High Court, we may point out that the principles governing pre-arrest and post arrest bail are different and merely because the petitioners' petitions for pre-arrest bail were dismissed was not a sufficient reason to also deprive them with the concession of post-arrest bail.
In the case Lt. Gen. (Rtd.) Fazlehaq v. The State (1989 SCMR 1724) the Hon'ble Supreme Court of, Pakistan has held that;-
6. The learned counsel for the petitioner has requested us that on observation be made in this order that the test somewhat prematurely applied by the High Court in para.8 of the impugned judgment may not be taken by the High- Court or Courts subordinate to it to prejudice the matter of pending application of the petitioner for bail after arrest. The other is that an observation be made that in view of the nature of the proceedings and the belated stage at which the petitioner has been implicated there will be expeditious disposal of the pending matters.
7. Observation made in an order dealing with a matter of bail before arrest do not ordinarily and should not generally affect the exercise and undertaken or to be undertaken after arrest, for grant or refusal of bail. We are sure that the Courts will follow that principle and be not prejudiced in any matter thereby. We are also confident that keeping in view the nature of the proceedings an early and expeditious disposal of the matter will be ensured at every level.
In the case of Muhammad Hussain v. The State (1982 SCMR 227) the Hon'ble Supreme Court of Pakistan has held that,-
10. ...... We can, however, not lose sight of the fact that pre-arrest bail and bail after arrest are based on entirely different principles and the rejection of an application for the former does not have any bearing on the latter.
16. In the present Reference, the pre-arrest bail application was dismissed and after their arrest, the petitioners filed post-arrest bail before this Court. Taking the guideline from the above case-laws, we have found no force in the arguments of learned counsel for NAB. We hold that this is their first post-arrest bail. After the dismissal of the pre-arrest bail, the post-arrest bail can be granted, if he/petitioner made out a case for grant of post-arrest bail.
17. An application dated 30.12.2014 was moved by the Transparency International Pakistan to the DG NAB Sindh, for conducting an inquiry of KMC immunity plot of 245 acres, land reserved for KMC Sports Complex Landhi. After receiving the application, the inquiry was conducted and Reference No. Nil/2017 was filed before the Administrative Judge, Accountability Courts, Sindh Karachi (The State v. Subhan-ul-Islam) against 118 accused. After receiving the Reference, the learned Accountability Court was of the view that the private accused persons/beneficiaries have been made accused without recording their plea and nothing has been brought on record showing that call-up notices were issued to them to record their plea but they did not appear during the investigation. The learned Administrative Court further observed that the Reference was initiated on a complaint made by Transparency International Pakistan dated 30.12.2014, which is about the illegal act of KMC in respect of 245 plots relating to KMC Sports Complex by -selling as Residential/ Commercial plots. It appears that investigation is not in line with complaint apart from other defects and the Reference was returned with direction to the NAB to re-investigate the matter in line with the complaint and examine the beneficiaries/allottees so that it could come on record that they are actual beneficiaries or bona fide purchasers or they have been defrauded by someone. The matter was again re-investigated and instant Reference No.27 of 2018 was filed against the 16 accused persons. (The State v. Ghulam Mustafa Phul and others). Again another letter dated 02.10.2019, written by Trustee Justice Retired Dr. Ghous Muhammad, Transparency International Pakistan, addressed to the Chairman NAB, wherein he had informed to the Chairman that Mr. Roshan Shaikh has been unjustifiably incriminated and is suffering, and is facing NAB Reference though he is completely innocent in this case. Moreover, NAB Reference No.27/2018 in the Accountability Court has caused hindrance in his promotion which was due three years ago.
18. Reverting to the case of the petitioners, admittedly the petitioner(s) Roshan All Shaikh, Fazal-ur- Rehman and Muhammad Waseem have not granted/ transferred the land to the KMC neither they have allotted land to the private persons, hence allegedly they have not given any loss to the government exchequer, or committed offence of corruption and corrupt practice or obtained gratification directly or indirectly from any person. Further, they have not misused their authority being Commissioner / Deputy Commissioner CDG Karachi; District Coordination Officer and Ex- Director Land KMC, respectively. As per NAB own case, the petitioners did not receive any financial benefit. There is no incriminating evidence available on the record which suggests any mens rea or criminal intention on the part of the Petitioners. In the case of The State and others v. Idrees Ghauri (2008 SCMR 1118) the Hon'ble Supreme Court of Pakistan has held that;-
12. The charge against the appellant was that he by misuse of his authority committed an offence of corruption and corrupt practices within the meaning of Section 9(a) of (vi) punishable under section 10(a) of the Ordinance. The misuse of authority in general, means the wrong and improper exercise of authority for the purpose not intended by law, therefore, in order to. prove the charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus reus of the crime have to be necessarily established and in case any one of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of authority means to act in disregard of law with the conscious knowledge that act was being. done without the authority of law and except in the case of strict liability, the element of mens rea is necessary to constitute of crime. The offence of corruption and corrupt practices within the meaning of section 9(a)(vi) of the Ordinance, is not an offence of strict liability, therefore, the use of authority without the object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence...
19. The Petitioner Roshan Ali Shaikh remained posted as Executive District Officer (EDO), City District Government Karachi from 25-02-2010 to 14-02-2011, Deputy Commissioner City District Government Karachi from 30.09.2011 to 09.11.2011 and Commissioner Karachi Division from 09.11.2011 to 08.10.2012 the allegation against him that he being a senior officer misused his authority in violation of Section 24-A Colonization of Government Lands (Amendment) Act, 2009, by misreporting to Secretary (Land Utilization) by not fully clarifying the title of land which already issued a lease for 30 years to 99 years and encroachment on the said area.
20. The Collector Karachi vide his order No.Rev/3849 Dated 31.12.1960 allotted an area of 250-20 acres from Naclass to the Karachi Municipal Committee hereinafter referred to as (KMC) for the specific purpose of shifting of Wool Washing Factory and Tannery from Lyari quarters Karachi. The KMC however did not get the wool washing factory or tannery shifted. The dues outstanding against KMC in 1969 amounted to be. Rs.400,800/. In January 1999, Governor Sindh had convened a meeting on the request of affected allottees, who were allotted 2320 plots by KMC in 1993. It was decided that the committee comprising of Deputy Commissioner Malir, Sr. Director Land, KMC and representative from Board of Revenue, Sindh would enquire into the mater. In the meeting the KMC claimed that the payment as per the demand of Mukhtiarkar Karachi was made an amount of Rs.7,82,000/- being a Malkano in 25 times alternate assessment was made and acknowledged by Mukhtiarkar Karachi, further they claimed that excess amount of Rs.173975.37 had been made. In 1993 KMC launched one Scheme and allotted 2332 plots for cottage industries. Meanwhile, the Board of Revenue and D.C. office allotted 149 acres to different individuals. The Committee submitted such report vide letter No. Dc/Malir/ PA/C.I/03/99 Karachi dated 15.01,1999 to the Governor Sindh with the suggestion that "alternate land may be provided for the cottage Industries or the amount may be refunded by KMC" (Folder No.3/24). A summary titled status of land allotted for Cottage Industrial Estate Landhi was floated by Joint Deputy Secretary, Government of Sindh dated 09.02.1999 to Governor Sindh which is available in (Book No.1/24 of Reference No. 27/2017). In paragraph No.6 it is written that:- "The KMC disagreeing with the Deputy Commissioner has stated that all dues claimed by the Mukhtiarkar Karachi were duly paid by KMC except interest claim of Rs 98,117 as confirmed and admitted by the Mukhtiarkar Karachi under his letter No. SCL/ 2487 dated 05.10.1970 (flag 'C') against overpayment claim of KMC Rs. 1,73,975.37 being interest vide letter No.LSM/ 89/ 46/ 65 dated 12.10.1970 (flag 'D'). Thereafter no reply of any claim Oat the, allotment of land since 1973 to 1989 through auction was never objected by the Deputy Commissioner/ Board of Revenue, hence, KMC announced Cottage Industry plots of 200 Sq. Yrds. in the, balloting by IBA but no objection was even raised by the Deputy Commissioner/ Board of Revenue, KMC is continuously approaching the Deputy Commissioner, Malir for removal of encroachment from the plot in question, for the last 3-4 years but to no response. The KMC also claim that BOR/ Deputy Commissioner has never issued any show cause, cancellation order or any other order whatsoever for resuming the land as it was transferred to KMC vide order dated 31-12-1960 (flag 'E'). KMC pointed out that allotment made by BOR/ Deputy Commissioner on this land is unauthorized and without lawful authority as no proceedings of resumption of land are available"
21. On 20.02.1999 a Note was Put to the Governor Sindh by Shafique Paracha (the then Commissioner, Karachi Division) in which he has stated that the meeting was held by the Governor Sindh with all the concerned departments and, discussed the issue of possession of the land to the allottees of KMC Cottage Industrial Estate, it is appropriate to reproduce the order which is as under:-- This refers to the meeting held by the Honourable Governor of Sindh last month and subsequent meeting of Commissioner Karachi on 12th February 1999 with all the concerned Departments to discuss the issue of possession of the land to the allottees of the KMC Cottage Industrial Estate.
The position taken by the allottees respondents which was also supported by the Administrator, KMC, was that the land in question was under illegal occupation of some persons. Replying on that version, it was decided that action would be taken for removal of the encroachments early by a committee headed by the Deputy Commissioner, Malir.
The facts on ground are, however, completely different. The possessors are in fact, legal allottees of the land of those who bought from the original allottees who were duly allotted this revenue land by the Board of Revenue.
In 1960, the Revenue authorities allotted a piece of land ad measuring 262 acres to KMC for the purpose of shifting of wool washing factories and tanneries from Lyari quarters". The KMC, however, did not utilize the land for the purpose and did not seek transfer of the land in its name for a period of almost 39 years. It also appears that there was no final settlement of the dues by the KMC.
In 1993, the KMC launched this scheme without ascertaining the status of land in Revenue record books or transfer of land in record by the KMC. Even at that time, it did not finalize the issue of record with the Board of Revenue. In the meanwhile, the land was allotted to different persons by Board of Revenue.
Meetings were held to get the final and clear picture of the issue with the Deputy Commissioner Malir and the representatives of B.O.R. andKMC. The picture which emerged after perusing the available record tells that the land in question stands allotted by the Revenue Department to various persons for different purposes. If compared on the legal merit of the case the title of present allottees holds a better ground than KMC. These legal allottees cannot be removed from the site having a better legal claim. They are also enjoying the possession. The feasible solution lies in an alternate land if it suits the allottees of KMC.
Sd/ (Shafiq-Ur-Rehman Paracha)
Commissioner Karachi Division
22. In paragraph 8, a separate Note was written by the Rukhsana Saleem, the then Secretary to Government of Sindh, Finance Department wherein she has stated that order of the Collector Karachi dated 31-12-1960 and subsequent correspondence between KMC and Board of Revenue (hereinafter referred as "BoR") established that the land in question was transferred to KMC on payment of dues and possession order handed over to KMC on 12-07-1969. Thereafter, there is nothing on record to show that the BoR initiated proceedings for resuming their land from KMC, even at that time KMC carried out auction proceedings of the said land from the. Years 1973 to 1989 after wide publicity, there was no response from the BoR to bring the issue now that KMC did not use the land for the purpose it had been allotted which complicated the matter.
23. On 22.10.201. D.D.0 Cattle Colony, Landhi Bin Q sim wrote a letter with subject approval of the .revised layout plan and regularization of Wool Washing Area approximately 265-acres Bin Qasim Town. In paragraph 4 attention was invited by the D.D.O Cattle Colony that higher authorities directed to resolve the dispute/issue of Wool Washing Area and Additional Executive District Officer were given task for the same and after several meetings , of both landowners and encroachers of Wool Washing Area and Land Management-II, City District Government Karachi will grant lease as per approved rate. For this purpose, a joint demarcation has carried out. It is appropriate to reproduce paragraph 4 of the said letter which is as under:- "4. Thereafter the higher authorities directed to resolve the dispute lissue of the land of wool washing area and additional Executive District Officer was given task for the sane and after several meetings of both the Land in owning agencies i.e. Land Management-II and Revenue Department it was decided that the revenue department will surrender his claim over the land of wool washing area and will also cancel the leases of 30 years issued by Board of Revenue to some occupants/ encroachers of wool washing area and land the Management-II. C.D.G.K withdrawn lease as per approved rates. For this purpose joint demarcation has been carried out and accordingly revised layout plan has been prepared and duly signed by the officers of Board of Revenue Department and Land Management-II C.D. G. K.
It is, therefore, requested that approval may kindly be accorded to place the matter before council C.D. G. K for obtaining approval of revised layout plan and regularization of the wool washing area comprising of approx. 265 Acres.
Sd/ D.D.O. Cattle Colony Landhi Bin Qasim Town
24. On 01.11.2010 Petitioner/Roshan Ali Shaikh received a letter from Jamal Mustafa Qazi ("the then Additional District Officer Revenue-I, City District Government Karachi"), for approval of revised layout plan and regularization of Wool Washing Area approximately 265:00 Acres deh Gangiro Bin Qasim Town Karachi, with the recommendation.
25. After receiving a letter dated 01-11-2010 the. Roshan Ali Shaikh/ petitioner replied that the matter has been re-examined thoroughly, which reveals that you have overlooked the fact that the then Collector of Karachi was pleased to transfer the land measuring 250-20 acres comprising NC-46, NC-76, abandoned road/dhoro in Deh Gangiaro for shifting of Wool-Washing Tanneries, Houses etc. ' from Lyari quarters Karachi on payment of Malkano plus altered assessment. You have confused the area of Wool Washing with the area of Cattle colony which was leased on 30 years basis. As far as Wool Washing Area is concerned it was never on 30 years lease. On 29.09.2011 a letter was written by the Secretary to Government of Sindh, Land Utilization Department addressing to the District Coordination Officer, City District Government Karachi with the subject of "Mutation of Wool Washing Area Landhi for entry made in the record of rights of Revenue Department in favour of Land Management-II, City District Government Karachi. It is appropriate to reproduce the relevant para of the letter as follows:- "This is to inform you that this department has no objection to recover the balance amount of outstanding, against KMC along with interest and penal interest on the actual amount as well as entry in the Record of rights, after observing all the codal formalities in due course of time."
26. The Secretary Land Utilization floated a summary to the Chief Minister for the approval of letter dated 29.09.2011, it is appropriate to reproduce the relevant Para of the summary which is as under:-
1. ...........................
2. ...........................
3. It may be stated that the District Coordination Officer, City District Government Karachi vide his letter No.DCO/CDGK/ 232/ 2011, dated 22.09.2011 (Annexure-B) has reported that the District Officer (Land Management-II, City District Government Karachi) has requested the Executive District Officer (Revenue), CDG Karachi through Note Sheet dated 24.08.2011 that Collector Karachi vide his order dated 31.12.1960 allotted an area of 250.20 Acres from N. C-46 and 76 and from abandoned road site, deh Gangiaro to KMC on the payment of Malkano at Rs.2500/- per Acre plus 25 times half of the altered assessment at the rate of Rs.25/ - per acre, the possession of the land was handed over to KMC on 12.07.1961, the payment of Malkano and 25 times altered assessment at 7,82,812/- was made to Revenue Department and acknowledged by Mukhtiarkar of Karachi vide letter dated 19.09.1969. But it is a fact that land in question was never transferred/ mutated in the name of KMC/LA1-11, CDGK, which may be mutated accordingly.
4. In this context E.D.O (REV), CDGK Karachi called specific view/ recommendations from the District Officer (Revenue) CDG Karachi who vide letter dated 12.09.2011 has forwarded letter dated 09.09.2011 of Mukhtiarkar (Revenue) Bin Qasim Town Karachi and reported the same facts as at Para-3 above. Possession of the land so allotted was handed over to the KMC on 12.07.1961, as appeared from Mukhtiarkar Karachi letter No.HCL/1908, dated 19.07.1969.
5. He has further reported that KMC paid an amount of Rs.7,82,800 from the total price of 11,83.,612.50 and as such the balance amount of Rs.4,00,800/- remained outstanding against them.
He has also reported that qabooli Survey No.21 (14-20 Acres) being enclave with the government land so allotted to KMC was acquired for the purpose of wool washing tanneries and its possession was also handed over to the KMC. This fact also transpires from the order dated 04,10.2004 passed by the Hon'ble High Court of Sindh in C.M.A. No.784 of 2004 filed by the private Plaintiffs seeking injunctive order in Suit No.132 of 2004 which was dismissed by the Hon'ble Court.
6. He also further reported that the District' Officer (Revenue) CDG. Karachi has submitted that there appears no hindrance if the entry of above 65-00 Acres is made in record of rights in favour of KMC on recovery of balance amount outstanding against KMC plus interest after seeking approval from the Board of Revenue Sindh as the matter pertains to the year 1960-61
7. Accordingly, a letter was issued to the District Coordination Officer, CDG Karachi that the Land Utilization Department has no objection to recover the balance amount along with interest and penal interest on the actual amount as well as entry in the record of rights, after observing all the codal formalities in due course of time vide letter No.01-137-10/ SO-VII/ 273/ 11 dared 29.09.2011 (Annexure-E).
8. ...........................................................
9. The Hon'ble Chief Minister Sindh may like to approve the proposal at Para-2 to 8 above.
Sd/ - SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT
27. While floating the summary to Chief Minister; the Finance Department of the view that matter regarding allotment of lease admeasuring 250:20 acres in deh Gangrio from Na-Class 46 to 76 in favour of KMC in the Year 1960-61 should be dealt following the terms and conditions of the allotment of the subject as per rules and policy. A Note is available written by Naveed K. Balouch, Secretary Finance, dated 19.11.2011 in paragraph 11 of the said summary, on 14-02-2012 a letter was written to the Petitioner/Commissioner Karachi Division by the Secretary to Government of Sindh (Land. Utilization) Department with the direction that the summary was floated to the Chief Minister, Sindh, for approval, however, the Finance Department given his observation on the summary that matter regarding allotment of land in question, should be dealt in accordance with the terms and conditions of allotment with further directions that you are therefore requested to please to furnish a comprehensive report regarding the title of land along with your specific views/recommendations as earliest into the matter.
28. On 16-02-2012 upon receipt of the letter forwarded to Deputy Commissioner, Malir, and requested him to furnish a detailed report relating to the subject land. On 20.04.2012 Deputy Commissioner Karachi, Malir, furnished report to the Petitioner/Roshan Shaikh vide addressing of the letter dated 20.04.2012 and was informed him that (with the subject of mutation of Wool Washing Area Land). It is appropriate to reproduce the last para of the letter written by Deputy Commissioner to the Petitioner / Commissioner as follows:-
1. .........................
2. ........................
3. ........................
4. It may be placed on record that balance amount' worth Rs.36,07,200/ = was calculated and recovered in accordance with approval of Senior Member, Board of Revenue Sindh, Karachi communicated by the Secretary Land Utilization Department. Government of Sindh vide his letter No.08-13 7- I0/ SO-V11/ 273/ 11, dated 29.09.2011. The mutation entry in the record of rights has also been incorporated vide entry No.005 dated 20.12.2011 pursuant to them order of the Senior Member, ooard of Revenue Sindh, Karachi ibid (copy enclosed).
Sd/- (Shoukat Hussain Jokhio)
Deputy Commissioner Malir Karachi
29. After receiving the letter from Deputy Commissioner, Malir, Karachi, the Petitioner/Roshan Shaikh forwarded report dated 20.04.2012 to the Secretary to Government of Sindh (Land Utilization)
Department, Karachi, stating that the report was self-explanatory again vide letter dated 20.06.2012 Secretary to Government of Sindh (Land Utilization) Department, written letter to the Petitioner/ Roshan Ali Shaikh/ Commissioner Division Karachi regarding subject land with further request to kindly furnish a detailed report concerning the status of the title of the subject land for onward transmission to the NAB authorities. On 27.06.2012 Assistant Commissioner (Revenue) informed the Commissioner Karachi that Na-Class Nos. 46 to 76 for Wool Washing Tanneries was granted by the Collector Karachi. It is appropriate to reproduce the para as follows:- 1/- .........................
2/- ........................
3/-. Perusal of the same revels that the land measuring 250-50 acres from Naclass Nos.46 and 76 for the Wool Washing Tanneries was granted by the Collector Karachi dated 31-12-1960 under the provision of the Land Revenue Code, 1879 on a permanent grant which was applicable at that time. It further reveals that amount due from KMC on account of the said land was Rs.11,83,612/- whereas KMC paid Rs.7,82,800/= leaving the balance to be recovered to the extent of Rs.400,800/-.
4/-. The balance amount along with penalty amount has been recovered from KMC, a Govt.
Department after necessary approval from Senior Member Board of Revenue Sindh.
5/- ........................
6/- .......................
Sd/- 27-06-2012 A.C.(REVENUE)
30. After receiving, such report vide letter dated 02.07.2012 the Petitioner/ Commissioner Karachi informed that since balance amount along with penalty has been recovered from KMC Government Department after necessary approval from Senior Member, Board of Revenue, Sindh, and there appears no regularity lapse in the allotment as well as recovery of the balance amount from the KMC. On, 14.09.2012 the Secretary to Government of Sind (Land Utilization) Department moved a summary for the Chief Minister, Sindh, and it is appropriate to reproduce paragraph 6 of the summary.
1. .................
2. ..................
3. ..................
4. ................
5. ...............
6. The Land Utilization Department has examined the case and is of the view that the subject land was granted on a permanent basis under the land Revenue code 1879 as confirmed by the Commissioner Karachi Division Karachi. Accordingly, it is proposed that the letter No.01- 131-10-137- 10/ SOVIl/ 273/11, dated 29-01-2011 issued by this department may be confirmed by according post facto approval of the same.
31. The role assigned against the petitioner Fazal-ur-Rahman, he being District Coordination Officer had written a letter dated 04.11.2010 to the Member (Land Utilization) Board of Revenue, Government of Sindh Karachi, with the request that land measuring 250 acres was reserved for Wool Washing Tanneries, leased out of defunct Karachi Municipal Corporation (City District Government Karachi) for 30 years in the year 1963. The KMC developed the infrastructure and leased out the plots to several individuals to establish said. cottage industry in that area. He further requested that lease of land may kindly be renewed and direct the concerned Mukhtiarkar to maintain the entries in Revenue record of right in favour of City District Government Karachi. Apparently, from the letter, it does not transpire that he has committed the offence of corruption or corrupt practice or misused his authority but he has made simply request to the Member, Land Utilization. When the resolution was passed by the Council Secretariat, Baldia Uzma Karachi, same was forwarded to the high-ups.
As to the role of petitioner Muhammad Waseem is concerned, he has written a letter dated 05.11.2013 to the Sub-Registrar, Bin Qasim Town, Karachi with information that Mr. Mashkoor Khan, Deputy Director Land KMC is hereby authorized to execute lease of Cattle Colony, Landhi/ Wool Washing Area, Landhi Division along with his specimen signature. It was also written in the letter that in future, no lease be executed without the signature of Mr. Mashkoor Khan previous authorization of Mr. Mohsin Ansari, Deputy Director are hereby stand cancelled/withdrawn with immediate effect. Being a Director Land, he has only authorized Mr. Mashkoor Khan to execute lease of land and in the capacity of Deputy Director, if any illegality was committed then authorized officer will be the responsible, as it is a routine as and when any officer is being transferred, he will authorize any responsible officer to execute the subject land.
32. From the above, it appears that the dispute was carried on between KMC, private persons/ plot owners and Land Utilization department since 1993. The then Governor Sindh, Chief Minister Sindh concerned Secretaries tried to level their best to resolve the controversy between them and finally the balance amount Rs.36,07,200/= was calculated and recovered in accordance with approval of Senior Member, Board of Revenue Sindh, Karachi communicated by the Secretary Land Utilization Department Government of Sindh vide his letter No.08-137-10/SO-VII/273/11, dated 29.09.2011. The mutation entry in the record of rights has also been incorporated vide entry No.005 dated 20.12.2011 pursuant to the orders of the Senior Member, Board of Revenue Sindh, Karachi. Learned counsel for the NAB has not been able to convince us from the record that essential element of mens rea and intention to commit an offence under NAB, Ordinance or the petitioners acted in connivance with anybody by indulging in corruption and corrupt practice extended undue favour to anyone for some personal gain or .pecuniary advantages. Even otherwise, any procedural irregularity, if found does not attract provisions of NAB Ordinance without establishing the mens rea on the part of the petitioners.
33. The next contention of the Learned Counsel for NAB that the petitioners violated the section 24- A Colonization of Government Lands (Amendment) Act, 2009. In view of Section 24, (The Colonization and Disposal of Government Land Act, 1912), when the Collector is satisfied that a tenant in possession of land has committed a breach of the condition of his tenancy, he may, after giving the tenancy, an opportunity to appear and state his objections imposed on the tenant, a penalty not exceeding 100 rupees or order the resumption of the tenancy. In the present Reference, the amount was calculated along with fine of Rs.36,07,200/- and recovered with the approval of the Senior Member, Board of Revenue, Karachi. Such communication was made by the Secretary, Land Utilization Department, Government of Sindh, vide letter No.08-137-10/SO-VII/ 273/11 dated 29.09.2011. The mutation entry in the record of rights has also been incorporated vide entry No.005 dated 20.12.2011, pursuant to the orders of Senior Member, Board of Revenue Sindh Karachi. The KMC allotted 2322 plots to the private persons/industrialist and Board of Revenue granted 149 acres to individuals. In such situation, it is yet to be determined when evidence will be recorded before the Learned trial court, that the land automatically shall stand resumed to the Provincial Government or when the payment was made and entries were kept in the record of rights and payments was made along with fine. The government of Sindh was keen to resolve the issue. The Reference has been filed and the applicants/petitioners are no more required for further inquiry. At the bail stage, only a tentative assessm ent is to be made and deeper appreciation is not permissible. In the case of Mukaram v. The State (2020 SCMR 965) the Hon'ble Supreme Court of Pakistan has held that "Liberty of a person was a precious right which could not be taken away without strong connectivity of accusation". Reliance is also placed in an unreported case of the Hon'ble Supreme Court of Pakistan in the case of Jahzeb Khan v. The State through A.G. KPK grid others in Criminal 1 Petition No.594 of 2020; wherein the Hon'ble Supreme Court has held that: "4 ...... Petitioner's continuous detention is not likely to improve upon investigative process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment. A case for petitioner's release on bail stands made out."
34. In view of the above facts and circumstances, learned counsel for the applicants/petitioners have succeeded to make out a case for further inquiry as envisaged under section 497(2), Cr.P.C.
Consequently, the instant petitions/bail applications were allowed vide short order dated 09.11.2020. Applicants/petitioners named above were enlarged on post-arrest bail subject to their furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lacs Only) each and PR bonds in the like amount to the satisfaction of the learned trial Court. However, upon release, they are directed to attend the trial on every date.
35. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicants/ accused on merits.
These are the reasons of our short order dated 09.11.2020.