HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D-4576 of 2012

Present: Sajjad Ali Shah, J.

Naimatullah Phulpoto, J.

Petitioners: Shaikh Shafiuddin Qureshi and Syed Asif Ali Zaidi through Mr. Farrah Saleem, Advocate

Respondent No.1: Muhammad Saalim Shaheedi through Mr. Sohail Abdul Rahim, Advocate

Respondent No.2&3: The State and SHO P.S. Ferozabad, Karachi through Mr. Khadim Hussain Khuharo, Deputy Prosecutor General Sindh

Date of hearing 12.04.2013

O R D E R

Naimatullah Phulpoto, J.— Brief facts as narrated in the instant petition filed on behalf of the petitioners Sheikh Shafiuddin Qureshi and Syed Asif Ali Zaidi are that complainant Muhammad Saalim Shaheedi has got registered a Criminal Case vide F.I.R. No.337/2012 under section 430/34 PPC at P.S. Ferozabad, Karachi East against the Petitioners, after obtaining order on application filed by him under section 22-A Cr.PC from the Court of learned Additional District and Sessions Judge Karachi East, wherein it is stated that complainant is tenant of Petitioner No.1 in respect of Flat No.2, House No.43-8/K-6, P.E.C.H.S., Karachi (hereinafter referred to as the “subject premises”) since last 14 years, who with intention to get the said premises vacated, disconnected the amenities, such as, electricity, water and gas and later on himself restored the same. It is further alleged in the F.I.R. that on 03.01.2013 at 08.00 p.m. both the Petitioners and their driver, namely, Muhammad Rizwan disconnected the connections of water supply, gas and electricity of the rented premises due to which family of the complainant was distressed. In the petition it is stated that impugned F.I.R. has been lodged with sole object to harass and humiliate and to cause irreparable loss to reputation of the petitioner No.1, who served the Country as Ambassador of Maldives and also participated in the establishment of Pakistan Embassy in Qatar. It is stated that complainant is tenant of the petitioner No.1 in respect of the subject premises and has defaulted in payment of monthly rent as well as water charges since May 2011, which he is legally liable to pay. The subject premises is required by the petitioner No.1 to settle his daughter, who is presently residing in the Unites States, as she intends to live with her father permanently at Karachi, and such, Petitioner No.1 sent a legal notice to complainant to vacate the subject premises. Instead of vacating the subject premises, complainant stopped payment of monthly rent as well as water charges since May 2011 and compelled the petitioner No.1 to institute a Rent Case bearing No.254/2011 on the ground of personal need and upon failure of complainant in payment of monthly rent and water charges another Rent Case bearing No.279/2011 was also instituted against the complainant. It is further submitted that instead of facing civil proceedings the complainant dragged the petitioner No.1 along with his son and driver into criminal litigation and got registered F.I.R. No.578/2011 at Ferozabad P.S., which F.I.R. was disposed of in “C” class as it is settled law that no tenant can initiate criminal litigation against the landlord. It is further submitted that despite having knowledge regarding institution of Rent Case No.279/2011 complainant avoided to face the proceedings and the learned rent Controller was pleased to proceed the said rent case in ex parte and disposed of the same as such. Thereafter, Petitioner No.1 filed Execution Application No.70/2012, against which complainant filed application under section 12(2) CPC on the ground that Petitioner has obtained ex parte order fraudulently, which upon the learned Rent Controller framed the following issues:

(1) Whether the order dated 14.11.2011 has been obtained by applicant by playing fraud and misrepresentation of facts?

(2) What should the order be.

It is submitted that since then the complainant is avoiding to record his evidence on the said issues and playing delaying tactics in order to linger on the proceedings in Execution Application. Petitioner No.1 filed application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, order whereupon was passed by the learned Rent Controller, directing the complainant to deposit monthly rent and utility bills in Court but the complainant failed to comply with the same and the defence of the complainant was struck off by the learned Rent Controller. It is further submitted that instead of facing the civil litigation the complainant filed the impugned F.I.R. bearing No.337/2012 at P.S. Ferozabad against the petitioners, I.O. submitted his report in “C” Class but the learned Judicial Magistrate refused to accept the said report and directed the I.O. to submit challan and restrained the petitioners from filing application under section 249-A Cr.PC and compelled the petitioners to file transfer application bearing No.70/2012 before the learned District and Sessions Judge Karachi East. It is submitted that the petitioners have nothing to do with the alleged offence, they are respectable citizens and they have adopted the procedure provided in law to get the subject premises vacated. It is submitted that water is being purchased through water tankers, previously complainant has been paying his share but when he was served with legal notice to vacate the subject premises he stopped to pay for the water purchased and lodged the impugned F.I.R. just to humiliate and defame the petitioners. Petitioners have prayed for the following reliefs:

(A) to quash the impugned F.I.R. No.337/2012 under section 430/34 PPC registered at P.S. Ferozabad as well as proceedings emanating therefrom pending in the Court of XIII Civil Judge & Judicial Magistrate, Karachi and transfer application No.70/2012 filed by Petitioner in the Court of District & Sessions Judge Karachi East;

(B) to restrain the complainant from dragging the petitioners into false and frivolous litigation; and

4. Learned counsel for the petitioners contended no F.I.R. can be lodged under Mr. Rashed A. Rizvi, learned Advocate for the petitioner contended that complaint sent by PIA to the respondents for initiating proceedings against the petitioner was in violation of section 5(r) of the National Accountability Ordinance, 1999 as amount due has not been determined by competent Court. The decision of sending reference to Accountability Court was illegal. It is also argued that action of PIA in sending complaint to respondent was discriminative, other agents have not been questioned. It is argued that an attempt has been made to convert the civil dispute into the criminal proceedings. It is argued that pre-arrest bail may be granted to the petitioner and proceedings pending before the Accountability Court may be quashed. Mr. Khawaja Shamsul Islam, learned Advocate for petitioner Muhammad Ibrahim Noor argued that allegation against the present petitioner is only that he neglected to perform his statutory duty of collecting/depositing the cheques pertaining to the Airways bills under the facility granted to the principal accused. Mr. Khawaja Shams further contended that name of the petitioner Muhammad Ibrahim is not mentioned in the complaint, he was only Manager Finance. No case is made out against him and argued that concession of the pre-arrest bail may be extended to him. In support of the contentions reliance has been placed on the following reported cases:

1. Air Marshal (Retd.) Waqar Azim and 3 others versus The State (2002 YLR 1811) [Lahore]

2. Mrs. Shahida Faisal and others versus Federation of Pakistan and others (2001 SCMR 294)

3. Asif Sehgal versus National Accountability Bureau (PLD 2003 Lahore 686)

4. Irfan Jabbar versus The State (2004 CrLJ 583)

5. Ahmed Vs. The State (2005 YLR 236)

6. Mian Muhmud Ali Qasuri and others Vs. State (PLD 1963 SC 478)

7. Lakhi Narayan Kundu Vs. the Crown (PLD 1955 DACCA 84)

5. Mr. Noor Muhammad Dayo, learned Prosecutor NAB, argued that the petitioners are responsible for payment of the defaulted amount. It is submitted that the on 25.01.2011 petitioner Syed Sohail Hassan was arrested by the NAB authorities for 90 days, investigation was finalized and papers were sent to the NAB Headquarters, Islamabad for signature of the Chairman NAB but reference could not be signed as office of Chairman, NAB was lying vacant. It is argued that an amount of Rs.127 Million is proved against the petitioners, it is great loss to public exchequer, NAB had no enmity with petitioners. Reference is pending before Accountability Court. Lastly, it is submitted that involvement of the petitioner Muhammad Ibrahim Noor is also established. He had neglected to perform his statutory duty and gave monetary gains to principal accused. Mr. Dayo seriously opposed the petition. In support of his contentions, relied upon following authorities:

1. Faisal Hussain Butt versus The State (2009 SCMR 133)

2. Mrs. Riaz Qayyum versus The State (2004 SCMR 1889)

3. Asif Ayub versus The State (2010 SCMR 1735)

4. The State versus Aziz alias Abdul Aziz (PLD 1985 Kar. 27)

5. The State versus Haji Kabeer Khan (PLD 2005 SC 364)

6. Frida Rohail versus The State (2007 MLD 347)

6. We have carefully heard the learned counsel for the parties, perused the reference No.20/2011 filed by the Chairman NAB against the petitioners/accused and case law cited at bar.

7. For the sake of convenience Para Nos.3 and 4 of reference are reproduced as under:-

“3. That the investigation report further reveals that an agent for a Cargo or Passenger Tickets Sales make an Agency Agreement with IATA, which acts on behalf of member airlines, then member airlines extend credit facilities to the agent. Under the agreement, the agent has to submit the industry Bank Guarantees to IATA Singapore. This condition is to cover any possible default. M/s. Cargo Aids was required to submit the due Sales Report for period ending on September 15, 2007 alongwith due cheques. However, the Sales Report and cheques were not delivered to District Sales Officer, Karachi till October 02, 2007. However, 4 cheques deposited on October 03, 2007 viz cheque No.9941161 dated 01.10.2007 of Rs.9,528,770/- cheque No.9941162 dated 01.10.2007 of Rs.15,426,315/-, cheque No.9941175 dated 17.10.2007 of Rs.13,882,510/- and cheque No.994116 dated 17.10.2007 of Rs.7,878,608/- totaling Rs.46,716,203/- drawn on Allied Bank Ltd., SMS Branch, Karachi were dishonoured. The agent was given notice dated October 10, 2007 for making outstanding payment but they did not pay and subsequently, the agent was declared s defaulted by PIAC and IATA.

4. That the Investigation Report reveals that the accused No.1, 2 and 3 were not depositing the amount duly collected by them for shippers on behalf of PIA and thereby caused loss to PIAC in connivance with Aftab Ahmed (accused No.4) and Ibrahim Noor (Accused No.5) employee of PIAC who failed to perform their duty and gave monetary gains to the accused No.1, 2 and 3. The aggregate amount of loss was calculated by PIAC Management which is to the tune of Rs.127.845 Million.”

8. As regards to the jurisdiction of the High Court with regard to the grant of pre-arrest bail in National Accountability Ordinance 1999, it has been held in the case of titled the State versus Haji Kabeer Khan (PLD 2005 Supreme Court 364), that the High Court would exercise its powers sparingly in rare and exceptional circumstances for valid reasons. Relevant portion of the judgment is reproduced as under:-

“9. Now turning towards the case arising out of Writ Petition No.20214 of 2002 wherein respondent had sought bail before arrest in Reference No.38 of 2002. It is to be noted that under the NAB Ordinance there is no provision for grant of bail before arrest, therefore, this Court while examining the vires of 9(b) of the NAB Ordinance in the case of Khan Asfandyar Wali (ibid) took view that High Court shall exercise this power sparingly in rare and exceptional circumstances for valid reasons to be recorded in writing. In this behalf reference can also be made to the case of Meeran Bux v. The State PLJ 1986 (sic) 526 and Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82. As such we are of the opinion that the powers for grant of bail conferred by this Court has to be exercised strictly keeping in view the obser5vations made therein but it seems that the learned High Court had not recorded reasons indicating the exceptional circumstances for exercising extraordinary constitutional jurisdiction in favour of respondent particularly in the case in which the accused had not been arrested and no ground of malafide for bail before arrest has been attributed to the prosecution in the memo of petition.

Besides it respondent has failed to bring his case within the said principles, as such he was not entitled to bail before arrest as it has been held in the case of Malik Zafar Abbas v. Agha Raza Abbas Qazilbash and another PLD 2002 SC 529. Therefore, for this added reason, impugned order dated 18^th December 2002 in Writ Petition No.20214 of 2002 is not sustainable in law.

Thus for the foregoing reasons Civil Petition Nos.99-L and 100-L of 2003 are converted into appeals and allowed as a result whereof order dated 18^th December 2002 in both the petitions is set aside. Before parting with the judgment we may observe that the Accountability Court may dispose of the reference pending against the respondent expeditiously in the interest of justice.”

9. From perusal of Reference No.20/2011 prima facie, it appears that documentary evidence has been collected against the petitioners/accused Syed Sohail Hassan showing that he was not depositing the amount duly collected by him and apparently he has committed willful default as defined in section 5(r) of National Accountability Ordinance, 1999. It is admitted fact that 04 cheques were issued and same were dishonoured and loss was caused to PIAC to the tune of Rs.127.845 Million. No mala fide has been attributed against prosecution. Prima facie, an offence of corruption and corrupt practices as envisaged under Section 9(a) of the National Accountability Ordinance, 1999 is made out. It may be mentioned here that learned Accountability Court No.I after receipt of Reference No.20/2011 has framed charge against the petitioners/accused Syed Sohail Hassan, Aftab Ahmed and Muhammad Ibrahim Noor and evidence of 4 prosecution witnesses has been recorded. The contentions of the learned counsel for the Petitioner/accused Syed Sohail Hassan that he has been falsely involved in this case and willful default has not been adjudicated by competent Court can only be determined by the trial Court where case has proceeded as no elaborate sifting of evidence can be made at the time of deciding the bail application because appreciation of evidence is primary function of trial Court but only tentative assessment of the same is to be made by this Court. Rightly reliance has been placed upon the case of Mrs Riaz Qayyum versus The State (2004 SCMR 1889), which is reproduced as under:

“It is settled principle of law that an elaborate sifting of evidence cannot be made at the time of deciding bail application but only tentative assessment of the same is to be made. Thus, prima facie there appears to be a reasonable ground disentitling the petitioner’s husband, namely, Khalifa Abdul Qayyum, to the concession of bail.”

10. Thus, prima facie there appear to be reasonable grounds to connect the petitioner Syed Sohail Hassan in this case, hence, he is not entitled to grant of pre-arrest bail. Consequently, interim pre-arrest bail already granted to him is hereby recalled, with direction to surrender before trial Court.

11. However, case of petitioner Muhammad Ibrahim Noor is distinguishable from the case of co-accused Syed Sohail Hassan as allegation against petitioner Ibrahim Noor was that he neglected to perform his statutory duties and gave monetary gains to accused Nos.1 to 3. Learned Special Prosecutor NAB could not explain which statutory duty petitioner failed to perform. Apparently, no financial gains have been availed by the petitioner Muhammad Ibrahim and he had initiated the case for recovery of defaulted amount from the accused persons. Connivance of applicant Muhammad Ibrahim with co-accused Syed Sohail Hassan and others and his involvement in the case is yet to be determined at trial. Prima facie, case against applicant/accused Muhammad Ibrahim requires further inquiry. For above stated reasons, interim pre-arrest bail already granted to the petitioners/accused is hereby confirmed on same terms and conditions. However, prosecution would be at liberty to apply for cancellation of bail, granted to applicant/accused Muhammad Ibrahim if some tangible evidence is brought on record against him during trial.

12. Needless to mention here that observations made herein above are tentative in nature, learned Accountability Court No.1 shall not be influenced by such observations while deciding the case on merits.

JUDGE

Gulsher/PA