IN THE HIGH COURT OF SINDH, KARACHI

C.P.No.D-3984 of 2014           

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Order with signature of Judge

Present: Mr.Justice Muhammad Ali Mazhar

Mr.Justice Shaukat Ali Memon      

Shumail Sikandar     …………………………….Petitioner

                                        Versus

The Chairman NAB  

& others……………………………………………Respondents

Date of hearing 18.02.2015

Mr.Yousuf Moulvi,  Advocate for the Petitioner.

Mr.Noor Muhammad Dayo,  ADPG NAB

Mr.Hassan Noor, Assistant Director NAB/I.O.

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Muhammad Ali Mazhar-J: This Constitution Petition has been preferred for seeking bail in the Reference No.8 of 2014 filed by NAB on 18^th June 2014 under Section 18 (g) read with Section 24 (b) of NAO 1999 in the Accountability Court.  

2. In the aforesaid Reference besides the petitioner, four other accused persons have also been implicated. It is inter alia contended in the Reference that 34 allotees of Iqra City Project had filed complaints against the petitioner an authorized director of Crown Construction Company (Pvt) Ltd for illegal allotment of flats and shops in Iqra City project and despite lapse of 16 years the project has not been completed and possession of flats and shops were not given to the allotees. Against the present petitioner it is alleged in the Reference that after the death of his father, he took over both the projects Iqra City Phase-I & Phase-II and allotted and cancelled the flats and shops and executed lease deeds illegally after receiving payments/dues in connivance with his partners and directors of company, therefore, he has committed the offence of cheating public at large which is punishable under the provisions of NAO 1999.

3. The learned counsel for the petitioner argued that the petitioner was arrested on 22.7.2014. He has no nexus with any public office or public service. No allegation has been leveled against the petitioner of abetment or connivance with the person holding public office hence his arrest is illegal. The allegation against the petitioner is non-handing over of possession and non-execution of lease. The complaints filed by the 34 allotees over a period of 30 years cannot be considered cheating and fraud within the meaning of Section 9 (a) and 10 of the NAO 1999. The petitioner has never allotted the apartments/shops of the existing allottees to any other person. In fact he settled the grievances of a large number of allotees through his own funds. He was also not a signatory to the bank account of the company. No civil or criminal proceedings are pending against the petitioner for representing his deceased father and exercising such authority. He further argued that no purpose will be served for keeping the petitioner behind the bars. It was further averred that this court has already granted bail to Younus Warind and Muhammad Naeem Warind in CP.No.D-3439/2014 and Muhammad Alam Khan in CPNO.D-3314/2014. The learned counsel referred to 2011 MLD 602 (Muhammad Zafar Maniar Vs. Shehzad Ahmed & others). In this case bail was granted by this court on the medical ground plus accused had given reasonable explanation for the delay in completing the development work and also ready and willing to handover the physical possession to the allotees. He further referred to 2012 YLR 2809 (Hassan Jameel Ansari Vs.NAB). The court observed that no direct allegations leveled against the petitioners except misfeasance. Whole reference seems to revolving around other accused persons hence he was granted bail. In the case of Naseem Abdul Sattar Vs. Federation of Pakistan reported in PLD 2013 Sindh 357, this court held that scope of Section 415 P.P.C for the purpose of NAO 1999 is limited. NAB has no jurisdiction to take cognizance of an offence of cheating under Section 415 PPC unless that accused had dishonestly induced members of public at large to and not in an individual case. The counsel also referred to 2004 SCJ 20 (Abdul Aziz Khan Niazi Vs. State through Chairman NAB, Islamabad) in which apex court held that it is the fundamental principle of criminal administration of justice that unless prosecution prima facie satisfies the court about culpability of a person the bail to him cannot be withheld merely on the basis of presumption of guilt. Unless in the light of evidence in hands of prosecution, the case is brought within parameters of expression “reasonable grounds” to believe that the offence with which a person is being charged is committed by him, the bare accusation would not be sufficient to curtail his right of bail.  

4. The learned ADPG NAB argued that the petitioner has been rightly nominated in the Reference being un-authorized Director of M/s Crown Construction Company Limited. He is principle accused in the commission of offence of corruption & corrupt practices/cheating public at large. Sufficient incriminating material is available and there appears reasonable grounds to believe that the petitioner is guilty of offence triable and punishable under NAO, 1999. The project was to be completed by the 30^th November, 1997 but after lapse of 16 years the project is still incomplete. The inquiry was authorized by the competent authority which was latter on converted into investigation and resulted in filing of this reference. The role of petitioner has been highlighted in paragraph  No.1, 3, 6, 8 and 9 of the Reference and also in the Investigation Report. I.O has also recorded various statements under Section 161 Cr.P.C. After the death of Muhammad Sikandar, the petitioner took over both projects illegally and allotted/cancelled, flats/shops of Iqra City Project and executed lease deeds in favour of allottees by obtaining payments/dues in connivance with the other accused persons. He further argued that the same petitioner has already applied to the NAB for plea bargain which application is pending. On one hand the petitioner is not pursuing his plea bargain application but on the other hand this bail petition has been filed in which the petitioner has concealed and suppressed this material fact and showing innocence. In the plea bargain application, he admitted entire liability on behalf of company. Sub-Registrar of the property also informed the I.O that various lease deeds were executed by the petitioner which fact is mentioned in the investigation report. So far as the grant of bail to three accused persons by this court is concerned, the learned ADPG NAB argued that all are based on different footings and no rule of consistency can be claimed by the petitioner.

5. Heard the arguments. There is no quibble that whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial. Prosecution in order to make out a case for refusal of bail to an accused is primarily supposed to place on record material on the basis of which he is believed to be involved in a non-bailable offence, but in absence of such material the court for the purpose of releasing the accused on bail, instead of dilating upon the facts of the case in detail, can dispose of the matter by holding that his detention is unjustified or unreasonable until such time when on further probe either by the Investigation Agency or the court seized of the matter, some additional incriminating material is collected against him to justify rejection of his bail. Reference can be made to PLD 1996 S.C. 241 & PLD 2002 S.C. 572.

6. In the case in hand the role of the petitioner has been clearly defined in the Reference by the NAB that after the death of his father he took over the entire affairs of the Company and both the projects. He also received installments from the allotees of flats and shops, and also cancelled the flats and shops and also executed lease deeds after receiving amount. The prosecution has recorded at least 40 statements under section 161 Cr.P.C. and all the complainants/witnesses have implicated the petitioner. Even in the investigation report the excerpt from the statement recorded under section 161 Cr.P.C. are mentioned. It is further stated that during investigation Sub-Registrar II, Gulshan-e-Iqbal Town Karachi, has reported that as per traced record, the petitioner executed about 52 lease deeds in favour of allotees of Iqra City on behalf of Crown Construction Company, though the accused was not Director of the said Company. Similarly the same petitioner along with Rukhsana Sikandar, Kanwal Saqib Jamal and Iqra Sikandar had executed 90 lease deeds though they were not the Directors of the Company but they executed the leases in the capacity of legal heirs of their deceased father (Mohammad Sikandar).

7. One more important facet cannot be ignored that the petitioner had applied for plea bargain but he concealed this fact in his petition. The learned ADPG NAB produced the application for plea bargain signed by the petitioner showing his willingness to enter into a plea bargain. When the learned counsel for the petitioner was shown and confronted this document, he replied that he has no knowledge of this application. The request of plea bargain was made to Director General NAB Sindh by the petitioner on 29.4.2013 on the letter-head of Crown Construction Company (Pvt.) Limited under Section 25 read with Section 15 of NAO 1999. In this application the petitioner himself mentioned the names of at least 36 complainants who approached the NAB for the possession of their allocated units and the petitioner has also mentioned their paid amount in the form of a table. In this application the petitioner has incorporated various terms and conditions for accepting his plea bargain. One more application was filed on 19.5.2013 to the Director General NAB by the same petitioner in which he requested that he will settle the cases soon and refund the amount to the complainant. He further requested that sub-lease permission may be allowed to him and if any allotee will submit application with the NAB the matter will be settled as per condition of booking. Though the counsel for the petitioner robustly argued that the petitioner has nothing to do with the affairs of the Crown Construction Company as neither he is the Director nor the share holder on the contrary both the documents referred to above were signed by the same petitioner on behalf of the said company and communicated to the Director General NAB and in the plea bargain application the same petitioner has accepted all the liabilities and tabled certain conditions for accepting the offer of his plea bargain.

8. The learned counsel for the petitioner argued that Mohammad Alam Khan, Mohammad Younis Warind and Mohammad Naeem Warind have been granted bail by this court and also attached the copies of bail orders passed in C.P. along with a separate statement. It is worthwhile to mention that the same learned counsel appeared in C.P. No.3314 of 2014 in which one of the accused in the Reference Mohammad Alam Khan requested for bail. Mr.Yousuf Molvi, the same learned counsel appeared for the accused Mohammad Alam Khan and his arguments are integrated in paragraph-3 of the bail order passed in C.P.No.D-3314/2014 on 18.7.2014. The relevant portion is as under:-

“fictitious allegations have been leveled in the Reference and there is no solid material available with the NAB to involve him in the alleged offence as the petitioner was neither Director of Company nor executed any sub-lease in favour of allotee. He further submitted that petitioner was partner of Shumail Sikandar who was dealing with the main affairs of the project and cheques issued by Shumail Sikandar to the petitioner were dishonored”.

The present petition has been filed on 26.7.2014 after passing bail order in the case of Muhammad Alam Khan but the same learned counsel who is now espousing the cause of present petitioner argued that the petitioner (Shumail Sikandar) has nothing to do with the project while seeking bail for Mohammad Alam Khan he argued that Shumail Sikandar was dealing with the affairs of the project and cheques issued by him to Alam Khan were dishonored. No doubt this court granted bail to Mohammad Alam Khan but one of the grounds was the abrupt withdrawal of his pardon by the Director General NAB on alleged violation of the conditions on which the pardon was initially granted to him.

9. So far as the bail order of Mohammad Younis Warind and Mohammad Naeem Warind is concerned, it was argued by their counsel that Mohammad Naeem Warind was an employee of Mohammad Younis Warind against a monthly salary of Rs.6000/- only and as such no incriminating material was produced by the NAB against him. However, for the grant of bail to Mohammad Younis Warind his advocate also argued that Shumail Sikandar (present petitioner) illegally took over the project, received payments from allotees and executed sub-leases on behalf of Crown Construction Company Limited and after having knowledge of such fraud Mohammad Younis Warind (director of company) made complaint to the Land Utilization Department on 30.6.2004 to conduct an inquiry. It was further argued that Mohammad Younis Warind was never involved in the affairs of project and received 55 million from Mohammad Sikandar as a price of his own land. It was further argued by the counsel of Mohammad Younis Warind that Shumail Sikandar has taken entire burden upon him and offered plea bargain. Since the counsel for Mohammad Younis Warind voluntarily offered to furnish security of Rs.55 million, therefore, while considering other grounds also, the bail was granted subject to furnishing aforesaid security amount in addition to the surety. The purpose of highlighting the aforesaid bail orders is to demonstrate that the above bail orders are based on different premise so the petitioner cannot be given any benefit of above bail orders taking into consideration the incriminating material produced by the prosecution including the application moved by the present petitioner for plea bargain. In the Reference, the role of each accused is defined separately so the plea of bail viz.-a-viz. the rule of consistency whether applies or not needs to be considered in the perspective of role of each individual.  The learned ADGP NAB confirmed that the application for plea bargain is still pending with the NAB which in our view should have decided much earlier so that the fate of the application could come up to record. To our mind, no reasonable doubt exist to the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge that the petitioner has not committed offence of cheating the members of public at large. The case does not seem within the parameters of expression “reasonable grounds” to believe that the offence with which petitioner is being charged has not been committed by him.

10.   As a result of above discussion, this petition is dismissed. The above findings are tentative in nature which shall not prejudice the case of either party in the Accountability Court. It is expected that NAB shall decide and process the application of plea bargain submitted by the petitioner within fifteen days in accordance with law.

Karachi                                                           Judge

Dated.9.3.2015

                                                Judge