2004 PLP 1321 (YLR)

(6) The offer letter No.PS/MBR/(LU)/61/B/1994, dated 26-3-2002 is withdrawn hence may be treated as cancelled. SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT (MEMBER/SECRETARY OF THE COMMITTEE) A copy is forwarded to the Chairman of the Committee appointed under Ordinance No.III of 2001 for information. SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT (MEMBER/ SECRETARY OF THE COMMITTEE)

10. In response the applicant Gulzar Ahmed by a letter dated 7-5-2002 addressed a letter to the Secretary, Land Utilization Department, Government of Sindh is reproduced here in below:-- "May 7, 2002. Secretary to Government of Sindh Land Utilization Department (Member/Secretary of the Committee) Block 79, Pak. Secretariat Karachi. Sub: REGULARIZATION OF 144 ACRES LAND SITUATED AT N.C. No. 137, DEH TAISER, KARACHI WEST. Dear Sir, I acknowledge receipt of your letter under Reference No.PS/ MBR/(LU)/70/B/2002, dated 2nd instant and would like to state that though the price of Rs.200,000 per acre is still on the higher side as is evident from the evidences provided to you vide my letter dated 9-4-2002, even then to resolve the entire matter once for ever, I agree to your offer of Rs.200,000 per acre. I, further, seek your consideration keeping in view the worsening economic conditions prevailing to kindly issue four equal quarterly challans totaling Rs.25,920,000 for which I shall be highly obliged. My letter dated 6th instant is withdrawn hence may be treated as cancelled. I look forward to your cooperation and assistance. Yours truly Ch. Gulzar Ahmed, Director, Dreamland Limited. then on 10-5-2002 Major (R.) Ali Raza, Secretary, Land Utilization Department, Government of Sindh addressed a letter to applicant Gulzar Ahmed, which is reproduced hereinbelow in-exentso:-- "No.PS/MBR/(LU)442/2002, GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT, Camp at Karachi dated 10-5-2002. To, Ch. Gulzar Ahmed, Executive Director, Dream Land Limited, 58-A, Lalazar M.T. Khan Road, Karachi. SUBJECT:- OFFER LETTER OF AMOUNT Rs.2,59,20,000 (RUPEES TWQ CRORES FIFTY NINE LACS TWENTY THOUSAND ONLY). Government of Sindh in Land Utilization Department has been pleased to consider and allow you to pay differential amount of Rs.2,59,20,000 (Rupees Two Crores Fifty Nine Lacs Twenty Thousand only), in four instalments as under:-- (1) 25 % of the amount within one month. (2) 75 % in three equated quarterly instalments.

2. In the event of default in payment of any instalment(s) 10% surcharge will be charged on defaulted instalment amount: Regularization order will only be issued after the receipt of full payment. Challan for Rs.64,80,000 as first instalment is enclosed for payment. (MAJOR (RETD.) ALI RAZA) SECRETARY TO GOVERNMENT OF SINDH, LAND UTILIZATION. And the applicants have deposited the claim amount by four instalments and the last instalment amounting to Rs.64,80,000 was deposited on 20-1-2003. The applicants accepted the offer of the Government of Sindh and deposited the demanded amount, therefore, loss of Government Exchequer has been deposited. It means that the Government of Sindh, Land Utilization Department in view of the Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 has regularized the grant as per condition laid down in clauses 4 and 5, which are reproduced hereinbelow:-- "Assessment of Loss. 4.(1) Government may appoint a Committee for carrying out the purposes for this Ordinance. (2) Where the Committee after making such enquiry as deemed fix is satisfied that the allotments/ conversions or exchanges of Urban State land are obtained or granted for residential/commercial or industrial purposes ax the rate lower than the market value in violation of law or ban it shall determine the amount of. loss caused to Government and call upon the person concerned to pay such amount within the specified time. Regularization of allotments, conversions and exchanges.

5. The allotments, conversions or exchanges made at the mark in respect of which the amount determined under subsection (2) of section 4 has been paid shall be regularized."

11. It is obvious than the land has finally been regularized in the name of applicants and the trial of the applicants before Anti-Corruption Court tantamount the harassment. It is clear that the C applicants have not committed the offence under sections 409, 420, 468, 471, 34, P.P.C. as the initial grant was made in the year 1978-79 for an area of 144-00 acres and the land was granted to 9 persons namely Altaf Salam, Nasir Iqbal, Liaquatullah, Tariq Mushtaq, Mohsin Mushtaq, Nasim Ahmed, S.M. Naqi Kalya, Aziz Ahmed Dawaiwala and Ahsan-ul-Haq for 16 acres each for 10 years from 1978 79 to 1987-88 under the then existing Land Grant Policy. In the year 1982 on the application made by the State above named allottees the said grant was made under the orders of the then Deputy Commissioner by the Commissioner, communicated to Deputy Commissioner, West Karachi dated 13-3-1982 converting into Poultry Farming Lease for 30 years. Subsequently, in the month of December, 1993 the said allottees submitted the joint application to the then Chief Minister, Sindh (Sled Abdullah Shah) requesting for conversion of tenure of the said grant in their favour into 99 years lease as well as use of land from Poultry to Industrial/Commercial/ Residential who accorded summary in the relaxation of rules and allowed conversion on receipt of such application of the above named grantees, Ramesh Odeshi, the then Secretary, Land Utilization Department, Government of Sindh floated in a summary and placed the same before the then Chief Minister, Sindh (Syed Abdullah Shah) and allowed conversion of Rs.20,000 per acre. In relaxation of the rules as there was ban imposed by the Government on 2-1-1994, the mutation was made in favour of the above named grantees in Revenue Record and thereafter the applicants purchased the same from them on 23-6-1994 and constructed a Family Resort Theatre known as Dreamland.

12. It is clear that there is no evidence on record indicating that the above named allottees were fictitious persons or committed forgery, fraud or criminal breach of trust and original allottees have not been joined as an accused in the charge sheet, therefore, the applicants/accused have not committed any breach of trust being to be the servant. In way of business as banker, merchant, factor, broker, attorney or agent in respect of property nor committed cheating nor induced dishonestly to deceive to deliver any property to any person neither they committed forgery in I the purpose of cheating for preparing forged documents and there is no evidence that they used forged documents as genuine and pendency of trial in such offences against the applicants is an abuse of an authority to keep the matter alive in the Anti-Corruption Court or in the other Court when no offence has been committed by the applicants by purchasing land from lawful owners and there was an offer by the Government of Sindh, Land Utilization Department for payment of more amount, the offer was accepted and the applicants after receiving challan of differential Malkana of loss caused to the Government deposited the same to the Government and the land in question has been regularized as differential amount has been accepted amounting to Rs.2,59,20,000.

13. The proposition urged by the learned D.P.G.A., NAB that the case by filing an application in the trial Court the case stands transferred to the Accountability Court and no further order is required. The arguments raised by the D.P.G.A., NAB has no force as per decision of the Honourable Apex Court in Civil Petitions for Leave to Appeal Nos.957-K of 2001 and 44-K of 2002. The operative part of the observation in the above mentioned petitions are reproduced as under: (4) For the sake of convenience and ready reference, it would be advantageous to reproduce section 16-A of the Ordinance, which reads as follows:-- "16-A. Transfer of cases. (a) Notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any Court of law or Tribunal that any case involving a scheduled offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance and it shall not be necessary for the Court to recall any witness or again to record any evidence, that may have been recorded. (b) In respect of any case pending before a Court, the Prosecutor General Accountability or any Special Prosecutor authorized by him in this behalf, having regard to the facts and circumstances of the case and in the interest of justice and for the protection and safety of witnesses, consider it necessary that such case is transferred for trial, he may apply, for the transfer of the case from any such Court in one Province to a Court in another Province or from one Court in a Province to another Court in the same Province. (i) xxxxxxxxxxxxxxxx (ii) xxxxxxxxxxxxxxxx (c) xxxxxxxxxxxxxxxx (5) Main thrust of the argument of the learned counsel for the petitioners is that the learned trial Courts passed the impugned orders without issuance of any show-cause notice to the petitioners-accused in the cases pending before the said Courts. (6) We have examined the provisions of clause (a) of section 16-A of the Ordinance reproduced hereinabove, which clearly tend to show that notwithstanding anything contained in any other law for the time being in force, the Chairman, NAB may apply to any Court of law or Tribunal for transfer of the case involving a scheduled offence pending before such Court or Tribunal and, on receipt of such application, such Court or Tribunal shall transfer the said case to any-Court established under the Ordinance. It would appear that the object of the special law is to expedite the disposal of cases involving corruption, corrupt practices, misuse of power, misappropriation of property and matters connected thereto under the Ordinance and to avoid procedural delays and technicalities. The language of the provision unequivocally reflects the intention of the Legislature that the provision is self-contained and self executory leaving no option for the Court before whom cases involving scheduled offences are pending but to transfer the same. It is rather imperative to accede to such request unless it can be shown to the satisfaction of the Court that the offence against the accused does not fall amongst the offences included in the Schedule. On no other ground can a Court turn down a request for transfer of a pending case to Accountability Court on an application made by the Chairman, NAB under the Ordinance. This being the position in law, and the object of the Legislature, we are not impressed by the submission that the transferee Court in all fairness and reasonableness ought to have given notice of transfer to the petitioners. It may, however, be observed that it is not the requirement of law under the Ordinance that such order can be passed only after notice to the accused. Intention of the Legislature is rather patently clear and certain from the non-obstante clause at the commencement of the provision. In fact the provision has the overriding effect over general law."

14. In an unreported judgment of Division Bench of this Court in High Court Appeal No.88 of 2001 (Commanding Officer NLC and others v. Raza Enterprises and others). It has been held as under:-- "

7. At this stage it may be pertinent to examine the provisions of the Ordinance, which only comprises of 6 sections. Its purpose as the preamble states is to "provide for cancellation of certain allotments, conversions or exchanges of urban State land obtained or granted for residential, commercial or industrial purposes, at rates lower than the market value in violation of law or ban ...."

8. Sections 3 and 4 of the Ordinance, which are the operative provisions may be reproduced as follows:-- (3) Notwithstanding anything contained in any law for the time being in force or any agreement or judgment or order of a Court, but subject to other provisions of this Ordinance, the allotments, conversions or exchanges of urban State land obtained or granted for residential, commercial or industrial purposes at the rates of lower than the market value in violation of law or ban from 1st January, 1985 shall stand cancelled. (4) (1) Government may appoint a Committee for carrying out, the purposes of this Ordinance. (2) Where the Committee, after making such enquiry as deemed fit is satisfied that the allotments, conversions or exchanges of urban State land are obtained or granted for residential, commercial or industrial purposes at the rates lower than the market value in violation of law or ban, it shall determine the amount of loss caused to Government and call upon the person concerned to pay such amount within the specified time. " (9) Indeed the above provisions, in accordance with well-settled principle of interpretation of Statutes need to be read together. Section 3 no doubt provides that allotments of State land at rates lower than the market value shall stand cancelled, but section 4(2) requires a Committee to make an enquiry for determining whether the allotment was made at a rate less than the market value which has been defined to mean under section 2(6) as the value of the land at the time of allotment. In other words, the cancellation under section 3 could, prima facie, take effect after market value at the relevant time has been determined by the Committee. It is equally important to keep in view that under section 2 even if the allotment is found to be in violation of the law of a ban on allotments the Committee is still empowered to determine the amount of loss caused to the Government and call upon the person concerned to pay such amount within a specified time. It therefore, appears that even in such cases the allotment is not to be treated as void ab initio but the allottee can acquire ownership rights after payment of the amount of loss caused to the Government within the time specified by the Committee. (10) In view of the above, it is difficult to subscribe to the proposition that the respondent No.1 stood divested of all interests in the property upon mere promulgation of the Ordinance. The law appears to confer upon him the rights to acquire ownership right and valid title to the property after having made up the losses sustained by the Government. We are, therefore, unable to be persuaded by the contention that the respondent No. 1 lost all interests in the property. "

15. In pursuant to the enforcement of the said Ordinance, report of the Finance Department, representative of Law Department and Secretary, Land Utilization Department headed by Mr. Justice (R) Abdul Rahman Shah, the Committee was formed and they determined that the alleged losses caused by the original allottees to the Government with the connivance of the Revenue Staff and Secretary, Land Utilization Department and the then Chief Minister allowed conversion in favour of the original allottees and the present applicants/accused have purchased the land and thereafter offer of the Government was accepted and the alleged loss sustained by the Government has been paid and the copy of paid challans have been placed before this Court and the learned D.P.G.A., NAB has not objected on the offer of the Government of Sindh, Land Utilization Department and thereafter offer has been fulfilled by depositing the claimed amount. It is strange that despite agreement with the Provincial Government to which the land in question has been finalized, the NAB Authorities without legal sanction has tried to interfere with the agreement reached between the applicants and the Provincial Government and the suit bearing No.896 of 2002 has already been filed in the Court which is pending. Mr. Fazlur Rehman Awan, learned counsel appearing on behalf of the State has frankly and rightly conceded that the application be allowed and the proceedings before the Special Judge Anti-Corruption (Provincial), Karachi be quashed. The trial Court under sections 249-A, Cr.P.C. and 265-K, Cr.P.C. can acquit the accused as the case may be, at any stage of the proceedings in the circumstances of each of the case, the appropriate remedy was moved in the trial Court but the proper mind was not applied in respect of the matter whether the accused are entitled to be acquitted in terms of section 249-A, Cr.P.C. The jurisdiction under sections 249-A, Cr.P.C./265-K, Cr.P.C. and 561-A, Cr.P.C. are co extensive. The trial Court is duty bound to look into the prosecution case, other material and legal aspects of the case by exercising such powers whether the case was a fit one whether the trial Court should have acquitted the accused under section 249-A, Cr.P.C. without recording any evidence at all. It is manifest that original grant was made in favour of the nine grantees and on their joint request. The conversion was made and if any fabrication or cheating or loss of Government was extended by the original grantees or by the Revenue staff including Secretary, Land Utilization Department and thereafter by the then Chief Minister but there is no evidence that the applicants have committed offence for which they have been charged. In fact the F.I.R. of this case was registered on 31-7-2000 and it is stated that 1.10 billion Rupees worth Government land 144 acres situated in NC-137, Deh Taiser Taluka District West, Karachi has been grabbled in connivance with the Revenue Officer/Officer of Government of Sindh under the grab of Poultry lease to nine different Poultry Entries person without verifying their credentials and following rules and procedure provided by the statement of conditions laid down by the Government of Revenue, Government of Sindh. It is further disclosed in the F.I.R. that this allotment was planned by one Ch. Gulzar Ahmed who became ultimate beneficiary and managed illegal conversion of 30 years of agriculture/poultry/leases to 99 years for industrial/ commercial/ residential purposes through the then Chief Minister, Sindh (Syed Abdullah Shah), Fazlur Rahman the then Deputy Commissioner, Karachi West, Ramesh Odeshi, the then Secretary Land Utilization Department, Government of Sindh. The conversion of the land was allowed by the then Chief Minister on the joint request of J the original allottees on 2-1-1994 and the applicants purchased the same from them on 23-6-1994 and constructed Theatre known as Dreamland. After registration of F.I.R., the applicants approached the Government and entered into an agreement and paid the claimed amount to Rs.2,59,20,000 to the Government Exchequer, which amount has been deposited and the grant of land has been made good by the applicants. It is cordial' principle of law every criminal case should be attached on its own facts. The facts of one case different from other and, therefore, no rule of universal application can be allowed in certain cases so as to be made applicable to other cases. There is no other opinion that principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. to quash the proceedings when no offence is made out against the accused. The main consideration to be kept in view would be whether the continuance exercise, wastage of time and abuse of process of Court or not fit on the basis of fact admitted and patent of record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If facts of the present case are scrutinized on touchstone then it would be obvious that further proceeding in the Court on the basis of F.I.R. would be sheer wastage of time. I Initially the land in question was originally allotted to nine lessees and thereafter conversion was made on their joint request after floating the summary by the Land Utilization Department for extending lease period for 99 years. The cases relied by the learned counsel for the applicants supports the similar view. The case-law relied upon by the learned counsel on behalf of the NAB Mr. Anwar Tariq is based on different footing. In case of Yasin Siddiqui v. The State 2001 PCr.LJ 1331, the said case was pending in the Accountability Court and all the prosecution witnesses were examined and the case was fixed for statement of accused and defence if any and applicant had sought the application that High Court should assess and evaluate prosecution evidence recorded by the trial Court, but the trial Court was allowed to exercise its jurisdiction vested in it by law and give finding on merits after proper assessment and evaluation of prosecution evidence already recorded by it but the position of this case is different and the case is not rip and during the pendency of trial an application under section 249-A, Cr.P.C. was filed.

16. For the foregoing reasons, the application under section 561-A, Cr.P.C. is allowed alongwith listed application and the proceedings pending against the applicants pursuant to the F.I.R. No.76 of 2000 registered on 31-7-2000 and Special Case No.54 of 2002 pending before the learned Special Judge, Anti-Corruption (Provincial), Karachi in an offence under sections 409, 420, 468, 471, 34, P.P.C., are hereby quashed. The surety furnished by the applicants is discharged and P.R. Bond are hereby cancelled.

17. Office is directed to return the R&P of Special Case No.54 of 2002 to the trial Court immediately. H.B.T./G-11/K Proceedings quashed.