ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD

C.P. No. D- 223 of 2016

DATE ORDER WITH SIGNATURE OF JUDGE

15.6.2016

Present:

1. Mr. Justice Muhammad Ali Mazhar

2. Mr. Justice Anwar Hussain

1. For Orders on Office Objection

2. For Katcha Peshi

Mr. Ishrat Ali Lohar, Advocate for petitioner

Mr. Abdul Waheed Bijarani, Special Prosecutor NAB

MUHAMMAD ALI MAZHAR, J.- The petitioner has applied for post arrest bail in a Reference filed by the NAB authorities against him under Section 18 and 24 of the NAO 1999. Yesterday we partly heard this matter when the I.O namely Parkash was also present. Since the Reference was filed in court without mentioning number, and there was some confusion as the counsel for petitioner was telling Reference No. 6 of 2016 while the I.O and learned Special Prosecutor NAB were saying that Reference No. is 5 of 2016, therefore, we adjourned the matter for today. Now, the counsel for petitioner as well as learned Special Prosecutor NAB jointly confirmed that Reference No. is 05 of 2016 which has been filed only against the present petitioner.

2. The investigation report is also available on record to show that the Inquiry was authorized by D.G. NAB Karachi on the allegation of illegal sale of 52 acres of the land of New Town Cooperative Housing Society, Jamshoro to the private persons. However, during inquiry it was established that the land of the said society is still intact in the name of Society but the Administrator i.e. petitioner with malafide intention enrolled new members without approval of the competent authority. On completion of investigation a Reference was filed. In paragraph-2 of the Reference it is stated that the petitioner in the capacity of Administrator New Town Cooperative Housing Society, was found involved in corruption and corrupt practices by misusing his authority. It is further stated that he has committed gross violation of the Cooperative Societies Act 1925, Sindh Cooperative Housing Authority Ordinance, 1982 and bye-laws of New Town Cooperative Housing Society by fraudulently and deceitfully enrolling 127 new members in the said society and illegally incorporated their names in the list for holding elections of the said society and as a result of election, these new members elected the office bearers through fake and fraudulent means.

3. Learned counsel for petitioner argued that initially the scope of inquiry was totally different than the allegations mentioned in the Reference. It is further stated that no gross violation or misusing of authority has been pointed out except that the petitioner has enrolled 127 members. Even nothing has been placed on record to show that what personal gain or monetary benefits have been acquired by the petitioner on the alleged enrollment of 127 members who was performing his duties as Administrator duly authorized by the Authority. He further argued that since 18.1.2016 the petitioner is behind bars. The charge has been framed in the month of February, 2016 and since then no witness has been examined. He further argued that the prosecution has recorded 161 Cr.P.C. Statements of 07 witnesses out of which 06 persons are official witnesses except Maqbool Ahmed Memon who is an old member of the society. He further argued that on the basis of material available on record, it is clear that the case of the petitioner requires further inquiry.

4. Learned Special Prosecutor NAB argued that the petitioner was Administrator of New Town Cooperative Housing Society who with mala fide intention and without approval of the Authority made new members and also handed over the charge of society to the newly elected Managing Committee. He has placed on record copy of order dated 25.1.2016 passed by Deputy Registrar, Cooperative Societies, Hyderabad which shows that under Section 43(1) of the Cooperative Societies Act, 1925 inquiry was conducted in relation to the Constitution, Working and Financial Condition of the New Town Cooperative Housing Society, Limited, Hyderabad. The Inquiry Officer in his report submitted that some members were unlawfully enrolled and the Managing Committee formed on the basis of list of illegal members. He further suggested that fresh elections of Managing Committee be held in the society on the basis of original members. Certain allegations have been leveled against the petitioner in the capacity of Ex-Administrator that he has attempted to replace the original members with newly enrolled members in the society and took away the entire record of the society with him. However, learned Special Prosecutor NAB reiterated the statement made by the I.O yesterday before us that there is no evidence of any financial gain and monetary benefits at present which the petitioner has acquired by making 127 new members. He further admits that there is no evidence that the petitioner has sold any plot of the society to any person. However, he submits that the new members deposited their membership fee in the bank. The court has again specifically asked to the learned Special Prosecutor NAB as to whether any evidence of siphoning of money of the Society from the bank available, he submits that at present there is no such evidence available on record.

5. It is admitted fact that since January 2016 the petitioner is behind the bars and no witness has been examined so far by the NAB Court. The allegations against the petitioner is only the enrollment of new members of the society but it is admitted that the inquiry was initiated in relation to the alleged illegal sale of 52-00 acres land of the society but no such evidence of sale was found. Now it has been stated in the reference that the society land is still intact but the petitioner has enrolled some unlawful members.

6. After going through the Reference and the Investigation Report as well as other documents we have reached to this conclusion that the case of the petitioner requires further inquiry and at this stage there are no reasonable grounds to believe that the petitioner has committed the offence to which he has been charged.

7. As a result of above discussion the petitioner is granted post arrest bail subject to furnishing solvent surety in the sum of Rs.5,00,000/- (Five Lacs only) and PR bond in the like amount to the satisfaction of trial court.

8. The findings given above are tentative in nature and shall not prejudice the case of either party at trial. This petition stands disposed of.

JUDGE

*Karar/-