2017 PLP 437 (YLRN)

MAHMOOD A. KHAN, J.

These are two constitutional petitions filed by Dr. Syed Mehboob Ali Shah and his wife Mst. Faheema Soomro praying for admission to pre-arrest bail by way of constitutional petitions and are being disposed of on account of having required similarity.

1. The petitions have been filed referring to their fundamental rights under Article 4 of Constitution of Islamic Republic of Pakistan, 1973 on receiving of call up notice from the NAB authority. It is alleged in the petition that the husband namely Dr. Syed Mehboob Ali Shah has furnished all the details of his assets and personal date on prescribed forms and his statement has also been recorded to such effect and in brief the petitioner has clarified that before his entering into government service he had inherited 126 acres of agricultural land and then in year 2001 he also inherited 25% share in three rice mills in Shahdadkot city and from the said property including his salaries and agricultural income he has purchased remaining moveable and immoveable properties which he has shown in Income Tax Return and wealth statement. The petitioners have prayed for bail before arrest, quashing of the proceedings and restraint of the respondents from harassment. For the wife Mst.Faheema Soomro similar pleadings have been reiterated and the proceedings against the husband have been referred.

2. National Accountability Bureau has also filed comments in the matter wherein it has been disclosed that the said husband is belonging to village Syed Jahan Shah named after his father near Shahdadkot, he is currently serving as District Health Officer district Qambar-Shahdadkot. He has worked as a Medical Superintendent, Chandka Medical College Larkana for about six years and Medical Superintendent Ghulam Muhammad Mahar Medical College for about six years. During inquiry, the following properties of husband petitioner were unearthed; (a) Five plots in Shahdadkot (b) 2 Rice Mills (Nabi Shah Rice Mill and Jahan Rice Mill) (c) 133.6 acres of agro land. (d) 47-30 acres of agro land transferred by Syed Nabi Shah (Brother) (e) 2-21 acres of agro land in Sajawal. (f) 46-08 acres of agro land in Shikarpur. (g) 75-4 Sq.yards having valued at Rs.3,393,000/- at Ansari Mohalla Larkana. (h) Plot No. 109 measuring 400 Sq. yds plot allotment for Rs.24.000/- in Sachal Sarmast Township. (i) Plot No.68 measuring 400 sq. yds plot having market value of Rs.3,600.000/- in Sachal Sarmast Township. (j) Property No.120-II measuring 663 sq.yds Commercial Avenue Phase IV DHA Karachi. (k) Property No.71/II Phase-IV, DHA having purchased at Rs.17,200,000/-. (l) 42/1 Commercial Avenue, Phase IV DHA Karachi having purchased at Rs.4,700,000/- (m) Flat No.D-408 Sea Breeze Apartment Boat Basic Block 5 Clifton having purchased at Rs.600,000/-. (n) Flat No.A-7 Sahil Promenade Clifton Block-3 Karachi having purchased at Rs.4,800,000/-. (o) Foreign trips to various countries innumerable times.

3. As to the wife the comments of NAIB state that she was appointed in Health Department, Government of Sindh on 10.11.1988 as Woman Medical Officer (BS-17). Presently she is posted as Deputy Medical Superintendent (BS-19) at Chandka Medical College Hospital, Larkana since 27.02.2016, she married here husband Dr. Syed Mehboob Ali Shah in December, 1995. During her service from 1988 to December, 2015 she has received a sum of Rs.94,34,249/- on account of salary. The investigation reveals that petitioner Mst. Faheema Soomro besides inherited properties brought different properties from year 1988 to 2015, the petitioner Mst. Faheema Soomro purchased following properties in her name which she could not justify. S.NO. YEAR OF ACQUISI-TION PROPERTY ACQUIRED. NAME OF OWNER VALUE AS PER SALE DEED EVALUATED VALUE AT THE TIME OF PURCHASE REMARKS 01. 2009 Plot bearing No.71/II, 3rd Commercial Street Phase-IV, DHA Karachi Double storey Bungalow measuring 300 sq.yds Dr. Faheema Soomro Rs.18,60,000/- 1,72,00,000/- Sold out in 2011 02. 2009 Daihatsu- Coure-2009 ASA-753 Dr. Faheema Soomro Rs.6,64,000/- Rs.6,64,000/- -do- 03. 2011 Plot bearing No. 42/I, Commercial Avenue Phase-IV, DHA Karachi Double storey Bungalow measuring 300 sq.yds Dr. Faheema Soomro Rs.47,00,000/- 1,60,00,000/- Property held. 04. 2012 Toyota- Corrola- 2012 AYM-856 Dr. Faheema Soomro Rs.16,72,500/- Rs.16,72,500/- -do- Total Rs.88,96,500/- Rs.3,55,36,500/-

4. It is contended by learned counsel for the petitioners that the incomes of the petitioners have neither been considered or accurately calculated specially the agricultural income and in this regard he has relied upon various documents filed through statements, the learned counsel has also relied upon the statements of the Mukhtiarkar and has also referred Dhall receipts of the petitioner Syed Mehboob Ali Shah pertaining agricultural land. Learned counsel for petitioners has relied upon the cases of Syed Qasim Shah v. The State (2009 SCMR 790), The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118), Khalid Aziz v. The State (2011 SCMR 136), Muhammad Siddiquel Farooq v. The State (2010 SCMR 198), Ghani-ur-Rehman v. NAB and others (PLD 2011 Supreme Court 1144), Mansur-ul-Haque v. Government of Pakistan (PLD 2008 Supreme Court 166), Qazi Siraj v. The State (PLD 2004 Quetta 136), Hakim Ali Zardari v. The State (2007 MLD 910), Brig.(R) Imtiaz Ahmed v. The State ( PLD 2017 Lahore 23). Ghulam Sarwar Khan Lalwani v. The State (2016 PCr.LJ 1343), Syed Anwar Badshah v. Chairman National Accountability Court Islamabad (2013 PCr.LJ 1607), Mohaeuddin v. The State through PG Balochistan (2015 PCr.LJ 621), Muhammad Akram Nadeem v. The State (2008 YLR 735), Ramesh M. Udeshi v. The State (2005 YLR 1305) and Saeedullah Soomro v. The State (2011 YLR 144).

5. Learned Special Prosecutor NAB, however, contends that all the incomes of the petitioners have duly been considered and in this regard he has relied upon the income and expenditure statement especially the remarks column mentioned therein. It is further contended by learned Special Prosecutor NAB that the said consideration has been made year wise and despite the same the heavy amounts could not be explained by the petitioners as such the reference has been filed in the matter. It is finally stated that no mala fide has been shown against NAB.

6. In rebuttal the learned counsel for the petitioners termed the alleged non-consideration of agricultural income as mala fide.

7. We have heard the learned counsel and perused the record in the matter. It bears from the record that the petitioners have been charged under reference baring No.10/2016 for having unexplained bank transactions which are disproportionate to their known sources of income to which they could not justify. In the said reference details have been provided for the alleged immovable assets along with the date of acquisition, incomes [salary as well as agriculture (page 11 last paragraph)]. The reference is based upon cash flow chart providing all the incomes and reasonable expenditure, transactions from the bank accounts have been considered and thereafter found the same to be disproportionate to known sources of income calculated on year wise basis a total liability of Rs.124,172,804/- against the petitioners.

8. We have failed to comprehend as the how mala fides can be attributed to NAB where the incomes have been brought forward, once the incomes are present on record it is a matter of consideration to be made by the learned trial court in conclusion, findings of which are yet to come, the petitions have failed to show that any violation to their fundamental rights having been caused or even attempted as alleged. At this stage we are required to make only a tentative assessment of the material placed on record. The petitioners to our humble understanding have failed to make out a case of quashing of the proceedings as such the petitions stands dismissed. In our view there is prima face sufficient material to connect the petitioners to the office charged and there is no mala fide on the part of NAB as such their interim pre-arrest bail is recalled. MH/M-69/Sindh Pre-arrest bail refused.