IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No. 994 of 2017

Asad Kathuria….………………...………………...…………………..Applicant

Versus

The State……………….…………………………..……………….Respondent

Date of hearing and order : 10.07.2017

Mr. Shahnawaz Memon, advocate for applicant

Ms. Rahat Ehsan, Addl.PG

O R D E R

Fahim Ahmed Siddiqui, J: This order will dispose of the caption bail application filed on behalf of the applicant Asad Kathuria, who is facing trial in a case initiated under the FIR No.37/2017 lodged at PS ACE Karachi under Section 161, 217, 409, 420, 467, 468 & 34 PPC r/w Section 5 (2) Act-II of 1947.

2. The allegations against the applicant are that he in the collusion of co-accused succeeded in getting some plots leased out in his name without any right as he was not the old resident/occupant of the same area/plots and got them amalgamated and constructed a high-rise building without seeking any NOC from the concerned authorities.

3. The learned counsel for the applicant has argued the matter at length. According to him, the applicant is innocent and has been falsely implicated in this case. He submits that the applicant is a bona fide purchaser of the leased property from the lessor and no fraud or malpractice is done by the applicant. According to him, it was a regularised property and construction thereon was being done by the applicant after fulfilling all the formalities. He submits that an application for approval of building plan has been submitted and construction was started with the permission of the concerned officer of SBCA. He points out that the applicant has only built the structure of the building and he has yet not created any third-party interest in the said property. He further submits that the applicant undertakes not to create third-party interest unless all the formalities are completed and a completion certificate is issued by SBCA. The learned counsel for the applicant submits that the applicant is a heart patient and has undergone certain procedures in respect of his ailment and due to blockage, two stents have been to open the blockage. He submits that being a chronic heart patient, he needs a regular check-up, proper medication and presently he has developed some problems in jail. He points out that the Senior Medical Officer of Central Prison Karachi has already reported to the trial court about deteriorating health condition of the applicant. He submits that on the medical ground the applicant is entitled to bail.

4. The learned APG opposes the instant bail application. According to her, the applicant was arrested from the same plots, which were leased out and amalgamated by offering illegal gratification. She submits that the building was being constructed illegally without any approved plan. According to her, just moving application for approval of the plan is not sufficient and construction cannot be raised on any property without an approved plan. In response to a query, she submits that no one from the Sindh Building Control Authority (hereinafter known as 'SBCA') is made accused in this case. Regarding medical ground, the contention of the learned APG was that the applicant may be provided medical facilities in jail.

5. I have heard the arguments advanced and have gone through the material placed before me. It is a fact that the government lands are being encroached upon in collusion with the officials in government departments and the same are being illegally leased out. The activities of land grabbing are being protected by the officials and politicians alike. It is really a pitiful state of affairs that the green belts and parks were encroached upon by way of shameful activities known as 'China Cutting'. It is also pitiful that those departments and bodies who are responsible to safeguard the valuable landed property of government in the town, have chosen to be hand in glove with the land grabbers. It is also extremely sorrowful that the officials of SBCA are also not fulfilling their responsibilities and under their patronage mushroom growth of illegal towering buildings is continued. It is the duty of Anti-Encroachment Establishment to check those persons in SBCA, who are responsible for illegal construction in the city of Karachi or elsewhere. I am of the view that without baking and patronage of concerned officials of SBCA, the erection of illegal buildings is not possible. I am of the view that in suchlike cases, the concerned officers of SBCA are equally responsible for the criminal liability, as such, it is the duty of ACE to take action against them for permitting illegal construction or at least shutting their eyes due to the obvious reasons.

6. Now, I turn towards the case of the applicant. The property was not leased out in the name of applicant and he is subsequent purchaser. The applicant might be behind the entire game, but as per the record, he has purchased the property/plots from those in whose favour the lease was granted. However, he is responsible for getting the plot illegally amalgamated and raising unauthorized construction on the same. The counsel for the applicant has already stated that no third party interest would be created and no further construction would be raised on the subject plot unless the approved plan is passed. However, it is submitted on behalf of the applicant that he is a chronic patient of heart ailment and this fact is fortifies from the letter of Senior Medical Officer, Central Prison, Karachi bearing No. 864/2017 dated 05-06-2017, which was submitted before the trial Court in compliance of a direction issued to him. I would like to reproduce the relevant portion of the said letter.

“Above named accused H/O known cardiac case (Already angioplasty done 3 years back) and known hypertensive. He C/O chest pain on/off, palpitation, cervical pain and numbness over both arms. For the above complains he is taking medicines prescribed by outside consultant. As he is suffering from multiple diseases for that he needs proper investigations and consultation from any tertiary care hospital.”

7. It is the opinion of a Senior Medical Officer, in which ‘tertiary care’ is considered necessary for the applicant. This view of the medical officer can only be discarded by the opinion of some competent medical board. The prosecution did not prefer a request for referring the applicant to the Medical Board. I am of the view that in the existing position of affairs, a case of bail has been made out for the applicant, as such he is admitted to bail subject to furnishing surety of Rs.300,000/- (rupees three hundred thousand only) and PR bond of the equal amount up to the entire satisfaction of the trial Court. The applicant is restrained from creating any third party interest in the questioned plot and construction thereon and not to sale out any of the unit to anyone in the said building unless he succeeds in getting the building plan approved and a completion certificate is issued in his favour. The office is directed to forward the copy of this order to the Chairman, AEC and the Director General, SBCA for information and necessary action.

8. It is further observed that if the applicant after getting bail would become absconder and fail to appear without any valid reason or violate any of the terms of bail, then the trial Court will be at liberty to take any action against the applicant including cancellation of bail without making a reference to this Court.

The above are the reasons of my short order dated 10-07-2017.

J U D G E