ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

C.P.Nos.D-3758 of 2015           

________________________________________________________

Order with signature of Judge

                                                                  

                       Present

                  Mr. Justice Muhammad Ali Mazhar

                      Mr. Justice Muhammad Iqbal Kalhoro

 

 

Ghulam Muhammad               Vs.           NAB & Others

                                                                         

 

Date of hearing     22.07.2015 & 27.07.2015

 

 

Mr.Usman Tufail Shaikh, Advocate for the Petitioner.

Mr.Noor Muhammad Dayo, A.D.P.G NAB

 

Mir Osaf Ahmed, I.O of the case.

                                        …..

 

Muhammad Ali Mazhar J. The petitioner has brought this petition for his post arrest bail in NAB Reference No.Nil of 2015 “The State v. Matloob Ahmed Khan & others” in which he is accused No.4. On receiving complaints, an inquiry was authorized by the competent authority, which was converted into investigation by the DG, NAB (Sindh) Karachi vide letter No.2089/1/lW-2/CO-E/T-17/NAB(S)/2013/821 dated 26th November, 2013.

 

2. The investigation report revealed that the Management of Hyderabad Railways Employees Cooperative Housing Society (HRECHS) got approved a revised layout plan No.HDA/P&D/MP/PHS-021/2499 dated 15.12.1998 from HDA. Later on, Matloob Ahmed Khan (accused No.1) Ex-Chairman HRECHS tampered the said revised layout plan and inserted 51 plots in Block-D which land was not part of HRECHS land thereafter he sub-leased 35 plots on the basis of a forged copy of revised layout plan of 1998. The said piece of land was not owned by HRECHS but owned by Taluka Municipal Administration (TMA) Latifabad and Pakistan Railways.

 

3. The role of the petitioner has been described in paragraph 7 of the reference as under:-

Role of Petitioner/Accused Ghulam Muhammad

“7.That during the course of investigation it has been surfaced that on 04.10.2011 Muhammad Iqbal Memon, Director HDA (accused No.5) in order to suppress the action taken by Muhammad Bashir Awan restored the tampered revised layout plan through DG HDA Ghulam Muhammad Kaim Khani (accused No.4) vide letter No.HDA/P&DC/MP/PHS/2231/2011 dated 4.10.2011.”

 

4. We have heard the arguments of Mr.Usman Tufail Shaikh, learned counsel for the petitioner on 22.7.2015 but for rebuttal Mr.Noor Muhammad Dayo, learned ADPG, NAB requested for some time to call the I.O. of the case for his assistance, therefore, at his request we adjourned the matter to 27.7.2015 on which date Mr.Anwar Tariq held brief of Mr.Usman Tufail Advocate who was reported to be out of station.  The learned counsel for the petitioner argued that the petitioner was appointed Director General, Hyderabad Development Authority on or about 19.4.2010. He later on promoted in BS-20. Since the date of his induction as Director General certain elements began to malign him and the petitioner was constrained to file various constitutional petitions. The details are mentioned in Paragraph No.2 of the petition. The petitioner was arrested on 12.6.2015 and his role in the reference reflects that he misused his official position and authority by approving the revised layout plan while record shows that the Hyderabad Railways Employees Cooperative Housing Society (HRECHS) initially got approved their layout plan of 19 acres and 34 ghuntas, thereafter revised layout plan was approved in the year 1998. A complaint was filed by one Imran Khan Ghori in the year 2008, which was examined and report was submitted to Zila Nazim through which it was transpired that the layout plan filed by Imran Khan Ghori was forged. The society filed a constitution petition at Circuit bench of this court at Hyderabad and the matter was remanded to the then Commissioner Hyderabad Division to decide the approval of the layout plan. The revised plan was scrutinized on 23.7.2010 by the Deputy Director, Master Plan, which was also recommended by the Additional Director Master Plan thereafter, it was forwarded to the Director General, HDA. The same Additional Director moved a note that both the plans were compared with each other and it is found that revised plan dated 26.7.2010 is looking on the excess area from the layout plan dated 2.4.2010. The said note sheet was forwarded to the Director (P&DC) who put up a note for the Director General with the words that the scheme was approved with the approval of competent authority (GB, HDA and DG, HAD). He further proposed that prior taking any action/suspension of scheme the Administrator, (HRECHS) may be advised to submit the layout demarcation within 3 months.

 

5. The learned counsel argued that on this note the petitioner in the capacity of Director General, HDA written a note that “How did it happened? It should on 19 acres & 38 Guntas only”. Except this note no other document is available to show that the petitioner has allowed to approve/restore the revised plan on 26.9.2011. It is a matter of record that on same date, the layout plan was cancelled but on 4.10.2011, the Director (P&DC) withdrawn the suspension letter and Administrator of the Society was directed to submit the demarcation layout plan. It was further contended that the petitioner himself questioned the legality of the revised plan and no incriminating material has been collected against the petitioner. Despite writing the dissenting note, the petitioner has been implicated in the reference. The material  produced by the NAB suffices to hold that the petitioner never misused his authority nor acted contrary to law. Entire investigation has been completed and there is no chance of tampering with the record. He further argued that except the petitioner other accused persons are on interim pre-arrest bail granted by this court while the accused Matloob Ahmed Khan is absconder.

 

6. The learned ADPG NAB argued that all the accused persons nominated in the reference in league committed the offence of corruption and corrupt practices; therefore, they have been rightly taken to task. Being Director General the petitioner approved the revised layout plan without ensuring the area and ownership of the land and when the Additional Director informed through his note sheet regarding inclusion of the excess area in the revised layout plan the petitioner failed to take any action and on his direction the layout plan was restored. He further argued that the Governing Body of HDA in its meeting held on 20.2.2010 decided to restore the layout for an area of 19 acres and 34 guntas but with the connivance of all accused persons, 23 acres and 04 guntas were approved through the revised plan which means 04 acres and 2 guntas of land was allotted in excess.

 

7. Heard the arguments. It is well settled proposition of law that deeper appreciation is not required to be made at bail stage but where the case is mostly based on documentary evidence, the court has to see what incriminating material has been collected by the I.O. to show the involvement of the accused persons. The allegation against the petitioner in paragraph 7 of the reference is that on 4.10.2011 the accused No.5 in order to suppress the action taken by Muhammad Bashir Awan restored the tampered revised layout plan through Director General, HDA (Petitioner) vide letter dated 4.10.2011.  Whether the petitioner misused his authority or acted with mala fide intention or committed any act of corruption or corrupt practices, we have to have a look to some documents on which the learned ADPG NAB and the I.O. made much emphasis. On 24.9.2011 the Additional Director (Master Plan), P&DC, HDA forwarded a note sheet to the Director (P&DC) and pointed out some anomaly in the allotment of land to the Hyderabad Railways Employees Cooperative Housing Society (HRECHS). In the conclusion he submitted that area of layout plan dated 26.7.2010 should be got calculated/verified from the drawing branch and till such time the revised layout plan dated 26.7.2010 may be suspended. On this note sheet Director (P&DC) written a note that “As such the scheme was approved with the approval of competent authorities (G.B., HDA and D.G., HDA). To avoid litigation it is proposed that prior taking any action/suspension of scheme the Administrator, (HRECHS) may be asked to submit the required demarcation layout plan within 03 months”. After the note put up by the Director (P&DC) the matter was placed before the Director General (Petitioner) who contributed a note “How did it happened? It should on 19 acres & 38 Guntas only”.

 

8. On 26.9.2011 the Additional Director (P&DC) HDA written a letter to the Administrator (HRECHS) that since the Society failed to submit the demarcation layout plan within 03 months duly verified and confirmed by EDO (Revenue) Hyderabad, therefore the permission will be treated as suspended till the submission of demarcation plan. However, on 4.10.2011 Director (P&DC) communicated to the Administrator of the Society that he has been directed by the competent authority to withdraw the office letter dated 26.9.2011.

 

9. It is a matter of fact that since 12.6.2015 the petitioner is behind the bar and there is no progress in the trial. Under Section 16 of the NAO, 1999, it is clearly provided that the case shall be heard day to day basis and shall be disposed of within 30 days. The I.O. shown us a statement of the petitioner in which he stated to have given the approval of 19 acres and 34 guntas of land only and he did not commit any illegality nor he was the beneficiary of any such unlawful act or corrupt practice. The main allegation of the NAB is on the note sheet moved by the Additional Director on 24.9.2011 on which the petitioner raised a query thereafter, the suspension letter was withdrawn. The bare look to this note sheet does not show any approval or direction of the petitioner for the withdrawal of the suspension letter rather he himself raised a query. No other document was produced by the prosecution to demonstrate that the petitioner accorded any approval for the withdrawal of suspension letter. Whether he has acted with bona fide or mala fide intention, this requires further inquiry and at this stage it cannot be decided that the petitioner is involved in the offence of corruption or corrupt practices. The question raised by this court to the I.O. and ADPG NAB whether any evidence of obtaining any monetary gain or benefit has been secured or detected, the answer was in negative. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime.

 

10. As a result of above discussion, the petitioner Ghulam Muhammad s/o Ghulam Nabi  is granted bail in NAB Reference No.Nil/2015 “State versus Matloob Ahmed Khan & others” subject to furnishing solvent surety in the sum of Rs.500,000/- (Rupees five lacs only) with P.R. bond in the like amount to the satisfaction of the Nazir of this court. The petitioner shall also deposit his original valid passport with the Nazir of this court and shall not leave this country without permission of the trial court. The above findings are tentative in nature and shall not prejudice the case of either party in the trial court. The petition is disposed of.

 

Karachi:                                                          Judge

Dated.4.8.2015                              Judge