Shoaib Ahmed Shaikh (Petitioner) VS Chairman NAB & Others (Respondent)

IN THE HIGH COURT OF SINDH, SUKKUR

BENCH AT SUKKUR

Present Mr. Justice Nazar Akbar Mr. Justice Muhammad Faisal Kamal Alam

C.P NO.D-509 OF 2020

Petitioner : Shoaib Ahmed Shaikh Through Mr. Ali Raza Balouch, advocate for the Petitioner The State, respondent : Mr. Muhammad Zubair Malik, Special Prosecutor NAB C.P No.D-618 of 2020 Petitioner : Wali Muhammad Through Mr. Nisar A. Bhanbharo, advocate for the Petitioner The State, respondent : Mr. Muhammad Zubair Malik, Special Prosecutor NAB

C.P No.D-619 of 2020

Petitioner : Siraj Ahmed Through M/s Ali Raza Balouch and Nisar A. Bhanbharo, advocates for the Petitioner The State, respondent : Mr. Muhammad Zubair Malik, Special Prosecutor NAB

Date of hearing : 09.03.2021 Date of order : 09.03.2021.

ORDER

Muhammad Faisal Kamal Alam, J: By this common order, the titled petitions seeking pre-arrest bail, is decided. Already all the petitioners /accused are on anticipatory bail before arrest.

2.All the three accused are mentioned in Reference No.11 of 2020, sub judice before Accountability Court, Sukkur, filed by Respondent-NAB, crux of which is that Accused No.1-Wali /Muhammad Sheikh (Petitioner in C.P. No.D-618/2020) has purportedly misused his official position and authority have not only accumulated assets not commensurate with his legal source of income, but also extended huge benefits to his both sons, namely, Shoaib Ahmed Shaikh and Siraj Ahmed-Accused No.2 and 3 (Petitioners in C.P. No.D-509 and 619 of 2020).

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3.Learned Counsel for the Petitioners have argued that the above Reference is based on mala fide, for the simple reason that main Accused No.1-Wali Muhammad was not in a position to award government contracts to other persons including his son Siraj Ahmed Shaikh (Accused No.2). It is stated that Accused No.3 Shoaib Ahmed Shaikh is a banker and has no nexus with official work of his father (Accused No.1). Whereas stance of Petitioner No.2 is also the same that he is a private contractor but due to illegal interference by the Respondent-NAB the company was closed in the year, 2013. It is averred on behalf of Accused No.1 that he worked with Highway Department for 38 years and has a clean service record. Learned Counsel states that allegations of accumulating illegal assets/ wealth and unexplained bank transactions purportedly disproportionate to income of Accused persons, require a proper trial and thus it is a fit case for grant of bail.

4.Learned Special Prosecutor has opposed the grant of bail and has referred to the record to substantiate his arguments.

5.Arguments heard and record perused.

6.In compliance of directions of this Court, learned counsel for the Petitioners with his Statement dated 09.03.2021 has filed documents relating to the tax returns of Accused No.2 and 3, sons of Accused No.1.

7.Para-26 of the Investigation Report (Report) has mentioned the details of those contracts/ works which was awarded to M/s. Siraj Enterprises, which is a proprietorship concern of Accused No.2. It is further mentioned in the Report that Bank account of Accused No.2 was used for getting kickbacks from other government contractors to whom different contracts were awarded during the posting period of Accused No.1-Wali Muhammad Shaikh, as Tender Clerk. Account details of Accused No.2 is mentioned in the Investigating Report to show that even call deposit receipts which is a pre-requisite formality to participate in a public procurement was issued from the Bank Accounts of said Accused No.2 in favour of different contractors. The above Page 2 of 6

Reference as well as Investigation Report have specifically highlighted the assets of the immovable properties which were purchased during the year, 2010 to 2016. The Investigation Report has also taken into the account the fact that the Accused No.1 inherited an agricultural land measuring 31.05 ghunta in Deh Beechanji Taluka Lakhi District Shikarpur, but the remaining properties have been purchased from the purported ill gotten gains. The table containing these properties shows specific details about the location, mode of purchase and price. The estimated value of these immovable assets comes to Rs.30 Million at the time of purchase.

S# Deh & Tapo Taluka & Name of Name of Registered Area Purchase Market Present District Transferor Transferee Sale Deed No. Value as per Value at the /current & Date and Sale Deed time of Market Value Survey No. purchase 1 Beechangi Lakhi Muhammad 1.Siraj RSD. No.248 07-26 Rs. Rs. Rs. Tapo Bhirken District Yaqoob and Ahmed Dated Acres 100,000/- 3,060,000/- 3,825,000/- Shikarpur 14 other 2.Shoaib 30.09.2013 persons Ahmed Survey No.

(Both sons 521, 490, 506, of Wali 507, 763, 506, Muhammad 763, 488, 492 Shaikh)

2.Beechangi Lakhi Nabi Khan 1.Siraj RSD No.77 02-09 Rs. Rs. Rs. Tapo Bhirken District s/o Munshi Ahmed Dated Acres 20,000/- 178,000/- 1,112,500/- Shikarpur Khan 2.Shoaib 28.08.1991 Abbasi Ahmed Survey No. 521 (Both sons of Wali Muhammad Shaikh)

3.Beechangi Lakhi Deen 1.Siraj RSD No.36 02-00 Rs. Rs. Rs. Tapo Bhirken District Muhammad Ahmed Dated Acres 60,000/- 200,000/- 1,000,000/- Shikarpur s/o Faqir 2.Shoaib 09.01.1997 Muhammad Ahmed Survey No.522 Abbasi (Both sons of Wali Muhammad Shaikh)

4.Beechangi Lakhi 1. Bashir 1.Siraj RSD No.329 04-17 Rs. Rs. Rs. Tapo Bhirken District S/o Juma Ahmed Dated Acres 90,000/- 1,106,250/- 2,212,500/- Shikarpur Abbasi 2.Shoaib 23.12.2005

2.Mstt. Ahmed Survey No.519 Santar W/o (Both sons Bashir of Wali Abbasi Muhammad Shaikh)

5.Beechangi Lakhi Wali Muhammad Oral 0-31.05 Rs.5,000/- Rs. Rs. Tapo Bhirken District Muhammad Nooral s/o Statement Acres 39,375/- 157,500/- Shikarpur Shaikh s/o Edian (Biyan jo khat) Shaikh Mahar Survey No.448 (Inherited property Sold) Grand Total 17-03 Rs. Rs. Rs.

Acres /-

S# Deh & Tapo Taluka & Name of Name of Registered Area Purchase Market Value Present District Transferor Transferee Sale Deed No. Value as at the time of /current & Date and per Sale purchase Market Value Survey No. Deed 1 Old Sukkur New Mrs. Sara 1.Siraj RSD. No.38 266.6 Sq. Rs. Rs. Rs. Sindh Sukkur Zohaib w/o Ahmed Dated Yards 310,000/- 35,00,000/- 70,00,000/- Cooperative District Zohaib 2.Shoaib 06.01.2010 Housing Sukkur Farooqui Ahmed Survey/ Plot Society Tapo (Both sons No. B-73 Rahuja of Wali Muhammad Shaikh)

2.Old Sukkur New Mukhtiar 1.Siraj RSD. No.2393 300 Sq. Rs. Rs. Rs. Hamdard Sukkur Hussain s/o Ahmed Dated Yards 300,000/- 50,00,000/- 80,00,000/- Cooperative District Shah Nawaz 2.Shoaib 19.11.2011 Housing Sukkur Sahito Ahmed Survey/ Plot Society Tapo (Both sons No. B-57 Rahuja of Wali Muhammad Shaikh)

3.Dubai City Hyderabad Dubai City Siraj Ahmed Plot No.366 200 Sq. Rs. Housing Housing s/o Dated Yards 962,500/- Scheme Scheme Wali 12.11.2012 Hyderabad Hyderabad Muhammad Shaikh

4.Dubai City Hyderabad Dubai City Shoaib Plot No.367 200 Sq. Rs. Housing Housing Ahmed Dated Yards 962,500/- Scheme, Scheme Shaikh s/o 12.11.2012 Acres

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Hyderabad Hyderabad Wali Muhammad Shaikh

5.Old Sukkur New Muhammad 1.Siraj RSD. No.1423 300 Sq. Rs. Rs. Rs. Friends Sukkur Akram Ahmed Dated Yards 300,000/- 70,00,000/- 95,00,000/- Cooperative District Khan s/o 2.Shoaib 28.05.2014 Housing Sukkur Muhammad Ahmed Survey/ Plot Society Tapo Umar Jan (Both sons No. B-136 Rahja of Wali Muhammad Shaikh)

6.Old Sukkur New Dilawar s/o Siraj Ahmed RSD. No.2692 150 Sq. Rs. Rs. Rs. Sindhi Sukkur Muhammad s/o Dated Yards 250,000/- 45,00,000/- 50,00,000/- Cooperative District Bux Wali 08.12.2015 Housing Sukkur Muhammad Survey/ Plot Society Tapo Shaikh No. D-62 Rahja

7.Abad (Allah Rohri Abdul Majid Shoaib RSD. No.1031 600 Sq ft Rs. Rs. Rs. Wali Market, District Shah s/o Ahmed Dated 300,000/- 18,00,000/- 22,00,000/- Bus Terminal Sukkur Hakim Ali Shaikh s/o 29.11.2016 Rohri) Tapo Shah Wali Survey/ Plot Rohri Muhammad No. 02 Block-A Shaikh

8.Abad (Allah Rohri Abdul Majid Siraj Ahmed RSD. No.1032 450 Sq ft Rs. Rs. Rs. Wali Market, District Shah s/o s/o Dated 300,000/- 16,00,000/- 18,00,000/- Bus Terminal Sukkur Hakim Ali Wali 29.11.2016 Rohri) Tapo Shah Muhammad Survey/ Plot Rohri Shaikh No.03 Block-A1 Rs.

Grand Total Rs.

The details of Bank Accounts of three Petitioners/Accused show that an amount of Rs.34,75,77,000/- is in excess; that is, in terms of income the above amount in the bank accounts of these Accused persons were unexplained. The total worth of accumulated assets which is purportedly disproportionate to the known source of income of Accused/Petitioners is calculated as Rs.36,58,91,741/- (Rupees Thirty Six Crore Fifty Eight Lac Ninety One Thousand Seven Hundred Forty One).

8.Learned Counsel for the Petitioners could not justify his stance from the documents filed by him under his Statement (as mentioned above).

9.At this juncture, it would be relevant to reproduce a paragraph from the decision handed down by the Hon’ble Supreme Court in the case of Olas Khan and others vs. Chairman NAB, reported in PLD 2018 SC 40.

“7. National Accountability Ordinance, 1999 is a special statute, hybrid in nature, it is fusion of criminal liability and civil obligations, enacted with an aim to take effective measures for detection, investigation, prosecution and speedy trial of cases involving corruption, corrupt practices, misuse or abuse of power, and misappropriation of property and recovery of the same from the beneficiary or those found to have misappropriated such property and restoration of the same to the rightful owner thereof. It creates special genre of offences and wrongs”.

10.The above list of properties in the names of the Petitioners/accused, obtaining contracts of government Page 4 of 6

departments and banking transactions (inclusive of unexplained transactions), all are based on the documentary evidence; although, it has to pass the test of evidence and appraisal of the evidence at trial, but, at the same time, the above also indicates that prima facie it appears that Petitioner Accused No.2 is not only beneficiary of illegal gotten gains but is also actively participated/colluded with his father, Wali Muhammad Shaikh- Accused No.1/Petitioner, in such offence. Even at this stage, there is prima facie evidence about the allegations that an offence of corruption and corrupt practice by accumulation of assets beyond their known source of income and misuse of authority. In the cases of Haji Ghulam Ali (2003 SCMR 597-Haji Ghulam Ali vs. The State) and Olas Khan (ibid), both cases relating to the offence committed under the National Accountability Ordinance (XVIII of 1999), concession of bail was declined.

Similarly, learned Division bench of this Court in the case of Muhammad Irfan vs. The State, reported in 2019 YLR 1606, the bail was declined primarily on the ground that there was sufficient material on record to connect the petitioner with the offence. In another case of Dr. Syed Mehboob Ali Shah vs. National Accountability Bureau, reported in 2017 YLR Note 437, learned Division Bench of this Court declined the concession of bail to the petitioner (of the reported case), because that there were unexplained bank transactions which were disproportionate to the petitioner’s sources of income. A Relevant paragraph of the said judgment is reproduced herein under for the reference:-

8.We have failed to comprehend as the how mala fides can be attributed to NAB where the incomes have been brought forward, once the incomes are present on record it is a matter of consideration to be made by the learned trial court in conclusion, findings of which are yet to come, the petitions have failed to show that any violation of their fundamental rights having been caused or even attempted as alleged. At this stage we are required to make only a tentative assessment of the material placed on record. The petitioners to our humble understanding have failed to make out a case of quashing of the proceedings as such the petitions stand dismissed. In our view there is prima facie sufficient material to connect the petitioners to the office charged and there is no mala fide on the part of NAB as such their interim pre-arrest bail is recalled.”

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11.Consequently, C.P. No.D-619 of 2020 and 619 of 2020 preferred by the Petitioner/Accused No.1 and 2 are dismissed and the pre-arrest anticipatory bail granted earlier is hereby recalled.

12.The case of Accused No.3/Petitioner Shoaib Ahmed Shaikh is somewhat on a different footing. Initially, he was mentioned as an employee of JS Bank and later he started his own business of auto spare parts. For the time being, unlike his brother Siraj Ahmed Shaikh, (petitioner/accused No.2) he was not involved (allegedly) in obtaining government contracts.

13.Culpability of this Accused No.3/Petitioner is yet to be examined and determined at the conclusion of trial. Merely on the basis of properties held to be Benami in his name, will not bring the case of this accused No.3/Petitioner at par with that of Accused No.1 and 2 (Petitioners). In this regard, the unreported Order dated 04.07.2017 passed by the Hon’ble Supreme Court in number of Civil Petitions No.148-K, 150-K, 814 to 818 and 211-K of 2017, is applicable. The Apex Court was pleased to grant bail to the wife of an accused/petitioner (of the above referred Civil Petitions) on the ground that case of further inquiry has been made out. Similarly, the present Accused No.3/Petitioner Shoaib Ahmed Shaikh, who is on pre-arrest bail, which is in view of above discussion, is confirmed but with the modification of terms, that the said accused/petitioner Shoaib Ahmed Sheikh will furnish two sureties of 20 Million (Rupees Four Crore) each and PR Bond of the like amount to the satisfaction of learned Trial Court within ten (10) days from today, failing which the concession of bail will be recalled and the Respondents will effect his arrest.

JUDGE

JUDGE

Faisal Mumtaz/PS

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