2002 PLP 703 (MLD)

S.A. RABBANI, J.‑‑‑The petitioner was arrested by N.A.B., and the Administration Judge, Accountability Courts, Karachi remanded him to N.A.B. custody from time. to time, and finally, on 26‑6‑2001, he remanded the petitioner to judicial custody, as the investigation was ,complete and N.A.B. Authorities were to decide as to whether .a reference should be filed or not. This Constitutional petition has been filed with the following prayers: (a) That this Hon'ble Court may direct that the petitioner be set at liberty forthwith; (b) That this Hon'ble Court may declare the arrest, and detention of the, petitioner to be without lawful authority and of no legal effect; (c) That this Hon'ble Court may grant any other/further relief fit and appropriate in the given circumstances of the case; (d) That during the pendency of the instant Constitutional petition this Hon'ble Court may be pleased to direct that the petitioner be enlarged on bail and set at liberty on furnishing personal surety and or bounds as may be deemed appropriate by this Hon'ble Court. " On a specific query about this prayer, Mr. Hassan Aurangzeb, learned counsel for the petitioner, submitted that the petition is only for bail and may be treated as such. In view of this clarification the matter shall be examined and treated for the purpose of bail only. The case relates to an alleged loss of more than 954 million rupees to the Exchequer through an illegal and mala fide allotment of land reclaimed from Malir river. This 341.68 acres land was allotted to one Mst. Gulnar Begum, wife of Agha Tarique Khan, a Provincial Minister at the relevant time. After execution of lease deed in favour of Mst. Gulnar Begum, the land was purchased by the petitioner, through a deed of conveyance and assignment of lease, 'in the name of Messrs Marina City Development, in his capacity as partner. The concerned department has cancelled the allotment and lease in favour of Mst. Gulnar and the petitioner has filed a civil suit to protect their interest in and title to the property. These are the facts that are not disputed by the parties. At the outset, 'learned counsel for the petitioner made hi; submission about jurisdiction of this Court to grant bail in such cases and relied upon the case of Asfandyar Wali v. Federation of Pakistan and others (C. P. No. 13 of 2000 wherein the Supreme Court observed that it is well‑settled that the superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of Criminal Procedure Code, and the section 9(b) of the N.A. B., Ordinance to that extent is ultra vires to the Constitution. He also cited judgment of Full Bench of the Lahore High Court in the case of Anwar Saifullah Khan (PLD 2000 Lahore 564). Mr. Anwar Tariq, learned Dy. Prosecutor General N.A.B. did not dispute the prequisition about jurisdiction and submitted that the High Court has jurisdiction to grant bail in appropriate cases. The question about jurisdiction, thus, stands settled accordingly. About the liability and involvement of the‑ petitioner, Mr. Aurangzeb submitted that he purchased the land from the owner for value and without notice. He contended that lease was in favour of the allottee, and under that lease, she was authorized to transfer the land. To establish criminal liability of the petitioner, Mr. Anwar Tarique submitted that the petitioner remained connected with the scheme since beginning. According to him, the other partner Khalid Masood of Messrs Marina City Development masterminded this land scam in collusion with Agha Tarique and his wife Gulnar Begum. In this connection, he referred to the definition of "persons' given in National Accountability Bureau Ordinance, 1999, which includes the partners in the case of a partnership firm. Mr. Aurangzeb claims that the partnership firm was constituted after the land was allotted and leased to Mst. Giulnar Begum. In that case, the petitioner's liability for the involvement of Khalid Masood in the allotment scam shall depend upon the existence of the firm at the time and Khalid Masood's involvement in his capacity as partner of the firm or on its behalf. If the firm did not exist at the time when such illegal allotment was obtained, the petitioner shall not be liable for the acts of Khalid Masood. Mr. Anwar Tarique further referred to the conduct of the petitioner in pursuing some matters after the land was purchased by the petitioner firm. These acts, obviously, cannot be made basis, of an inference of his involvement in the offence of illegal allotment. Payment of less stamp duty, on the Deed of Conveyance in his favour, by the petitioner has also been mentioned as a ground, being an attempt to cause loss to the Government, but this is quite a separate matter and has no nexus with the allotment Scam. To show petitioner's connection with scam, Mr. Anwar Trique referred to a Cheque, for Rs.17,050,703, issued by the petitioner, which was deposited by Mst Gulnar Begum as occupancy price of this land. Mr. Aurangzeb submitted that the Cheque was issued towards the cost ' 'the land purchased and Mst. Gulnar used it as she desired. Mr. Anwar Tarique further con en a at involvement of the firm Marina City Development and thus, of the petitioner, its partner, is reflected by the, fact that the application given by Mst. Gulnar Begum to the then Chief Minister for conversion of mining lease into 99 years lease for commercial purpose mentioned construction of "Marin Mr. Aurangzeb explained that since the land is adjacent to the Marina Club, this name of the project would have been conceived but it had a no concern with the firm of the petitioner who came into picture afterwards. Mention of this name in that application might be a clue, but it would be short of an evidence of the connection of the two. The material discussed above merely establishes a feeble link of the petitioner with the scam. It would need a more substantial evidence to prove criminal liability of the petitioner. But, as mentioned by the Administration Judge, in his order of ‑remand passed on 26‑6‑2001, the investigation is already over. The petitioner is no more required by the N.A.B. Authorities for investigation. He has been remanded to judicial custody. He is in custody since 28‑4‑2001. Mr. Anwar Tarique submits that the N.A.B. Authorities have 90 days to complete the process and sometime is still available to submit a reference. The object of incarceration of an accused before conviction is not, and cannot be, a punishment for the offence, yet to be proved at the trial, because, in that case, the trial itself would be a farce. In view of all these facts, we are of the view that, incarceration of the petitioner at this stage would be against the norms of justice in a civilized human society. This is a case of further enquiry justifying grant of bail. Petitioner is, accordingly, admitted to bail subject to surety in the sum of Rs. One million and P.R. Bond in the like amount to the satisfaction of the, Nazir of this Court. Petition stand disposed of accordingly. H. B. T. /B‑38/K Bail granted.