Agha Asghar Ali (Petitioner) VS Fed. of Pakistan and Ors (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHtr Before:- Mr. Justice Ahmed A1i M. Shaikh, C'J. Mr. Justice Mohammad Karim Khan Agha, J' Petition numbers . name of the D etitione rs and their counsel.

1 C.P. No.D- t8l7 of 2017 Mustafa Jamal Kazi V. NAB' MustafaJamal KaziS/o Ahmed Muhammad Kazi Through M/s. Aamir Raza Naqvi & Afaq Ahmed, Advocates.

2 C.P. No.D-3401 of 2Ol7 rJbedullah Pahore V' Chairman NAB & others.

Ubedultah Pahore S/o Abdul Raheem Through M/s. M. Rehman Ghous & M' Anwar'lariq, Advocates.

J C.P. No.D -1g7g of 2077 Abdul Latif V' Federation of Pakistan & others, Abdui Latif S/o Abdul AzizBtol:,i Through Mr. Ayaz Hussain T\rnio, Advocate' I 4 C.P. No.D-3901 of 2Ol7 Agha Asghar Ali V' Federation of Pakistan & another.

Agha Asghar Ali S/o Abdul Sattar rtrougtiM/s. Khawaja Naveed Ahmed & Irfan Bashir Butta, Advocates.

Counsel for t he Res ondents

Mr. Mohammed Altaf, Special Prosecutor, NAB' Date of hearing: 26.O1.2018

Date of order: 30.0i.20t8

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Mohamm ed Kari m Khan ha, J: By this common petitions filed on order, we propose to dispose of the above confirmation of behalf of the above mentioned petitioners for t-1

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their ad interim pre-arrest bail which was granted earlier to them by orders of this Court. All of the petitioners are allegedly involved in acts of corruption under S.9 of the National Accountability Ordinance 1999 (NAO) which lead to t the National Accountability Bureau (NAB) filing Reference 15 of 2Ot7 (State Vs. Shahzar Shamoon & others) before the concerned Accountability Court in Karachi against the petitioners and their co-accused

2.NAB has alleged in Reference No.lSlzOLT that State land measuring 530 Acres in Sea-Shore, Deh, Dih Korangi Karachi was illegally allotted through forged and fictitious entries into Revenue Record to private persons in connivance f with officers/officials of Revenue Department, Government of Sindh (GOS).That in June, 2OO4,4 individuals namely (i) Mr.

Amjad Hussain (ii) Mr. Aslam Pervez (iii) M. Sultan (iv) Mst' Nasreen Akhtar, managed a bogus heir-ship certificate which was issued by a Justice of Peace. It is certified that they are the only legal heirs of one Muhammad Ibrahim POSTI s/o Baggu who is reported to have died on 30.11.L994' Fake and fictitious VF-VII Entry No.19/23 dated 20'O9'1936 was managed which purported that their deceased father was the owner of 30 acres from Naclass 24 and 500 acres from sea- shore which he allegeclly purchased for Rs'8500/- on oral statement. Based on the said bogus heir-ship certificate, FOTI ry

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KHATA BADAL for 530 acres was made on L5.7.2QO4 in favour of the said 4 heirs. After the FOTI KHATA BADAL the said 4 heirs disposed off 280 acres of land. The investigation also reveals that allegation of forgery in Revenue Records surfaced in the media and the Ex-CM, Sindh ordered an investigation to be conducted by the Ex-DCO, CDGK. The investigation Report concluded that the ownership of 530 acres in favor of Ibrahim s/o Baggu was not genuine as it was based on the fake VF-VII entry dated 20.09.1936. The Ex- EDO (Rev), CDGK cancelled ali fake Revenue Entries including 530 acres entry dated 20.9,L936. Being aggrieved by the Cancellation Order of the EDO (Rev), the said 4 heirs (a11 co-accused in this reference) and subsequent Khatedars filed series of constitutional Petitions and suits in this court.

The AEDO (Rev-I), CDGK did not conduct tlre inquiry to establish whether the said land VF-VII entry dated 20'9'L936 was genuine or otherwise but heard the Appeal No'1O/2010 instead which was filed jointly by Mr. Ismail Baloch and Mr.

Qasim Thaim. On l8.t2.2OtO, Ex-AEDO (Reve-I), restored/maintained all revenue entries including the said FV-VII entry dated 2O.9.1936. The Ex-Secretary, Land utilization issued directions vide letter dated 18.7.2011 to the + Ex-Commissioner for compiiance of restoration order of the Ex-AEDO (Rev-I), along rvith the additional directions' l//

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3.The investigation revealed that Mustafa Jamal (petitioner/accused No.2) with conscious knowledge misused his authority when he passed the illegal order to restore/maintain all subsequent entries including the initial entry. His order dated lB.l2.2OlO lacked good faith and was based on misuse of authority, hence illegal.

4.The investigation revealed that Obaidullah Pahore (petitioner/accused no.10) knowingly committed misuse of authority by willfully failing to exercise his official functions to check whether the forwarded copies of the said VF-VII Entry was genuine or otherwise and by willfully accepting the said heir-ship certificate issued by irrelevant holder of public a office, i.e, Justice of Peace.

5.The investigation revealed that Abdul Latif Brohi (petitioner/accused no.11) knowingly committed misuse of authority by forwarding attested photocopies of fake and bogus VE-VII Entry No.19/23 dated 20.9.1936 and by being custodian of Record of Rights, he willfully failed to apply his mind to.check the veracity of said FV-VII before forwarding the same to Mukhtiarkar, I(orangi.

6.The investigation revealed that Agha Asghar (petitioner/accused no.9) has been the main manipulator in terms of buying & selling of land in question' Accordingly' l/,

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notice u/s 19 of NAO, 1999 was issued at his residence which he deliberately avoided.

7.In the end it has come on record that the Accused No.1 to I I in'connivance with each other illegally a-llotted through forged and fictitious entries into Revenue Record 530 acres land in Sea-Shore, Deh, Dih Korangi Karachi which resulted into loss of Rs.53 Billions to the Government Exchequer which has been cancelled recently. Thus the petitioners and the other co-accused have committed the offence of corruption and corrupt practices under S.9 NAO and hence the Reference was filed against them.

B. Learned counsel for the petitioner Mustafa Jamal who was AEDO Revenue at CDGK GOS at the time when the entry in question was restored candidly admitted that he had restored the entry under a mistaken belief of its correctness based upon the information which he had received at that time; that he had acted in good faith; that when he came to know that the entry was illegal he immediately took corrective steps for the cancellation of the entry and it was through his efforts that the entry was again removed. He submitted that the maiafides of the NAB could be shown by the fact that the NAB had deliberately ignored documents which exonerated him and had deliberately concealed these documents both from the Court and himself and that he only obtained copies

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of the documents pursuant to his application before the Accountability Court when NAB was ordered by the Accountability Court to hand those documents over to him.

He also pointed to a 5.161 statement of Muhammed Moosa Khan Rind which NAB had not disclosed to him and who was neither an accused nor a PW in the Reference which also exonerated him. Thus for all the above reasons he submitted that the petitioner's pre arrest bail should be confirmed.

9.Learned counsel for petitioner Obaidullah Pahore who was the Mukhtiarkar Korangi Town at the relevant time submitted that the petitioner was completely innocent of any wrongdoing; that he had not signed any document and that { he had been malafidely roped into this case by the NAB based on no evidence and for all the above reasons he was entitled to the confirmation of his pre arrest bail.

10.Learned counsel for Abdul Latif who was Mukhtiarkar Scheme 33 Karachi at the relevant time submitted that the petitioner was completely innocent of any wrongdoing; there was no material against him; that in any event the entry had been cancelled and as such no loss had been caused and for all the above reasons he u'as entitled to the confirmation of his pre arrest bail.

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1 1. Learned counsel for petitioner Agha Asghar submitted that he was a private individual who by occupation was involved in the business of fisheries; that he was completely innocent; that the allegations against him as set out in the Reference were vague and there was not an iota of evidence against him to connect him to any offense as alleged in the reference and as such NAB's inclusion of him in the reference based on no evidence was malafide. Thus, for all the above reasons he was entitled to the confirmation of his pre arrest bail.

12.Learned. counsel for the NAB vehemently opposed all of the petitioners bail applications. He submitted that there had { been no malafide on the part of the NAB and that there was more than sufficient material on record to connect each of the petitioners to tJ:e crime for whieh they had been charged in the reference and in this respect took the court tlrrough numerous documents

13.we have considered the submissions of the parties and have carefully gone through the record'

L4. We would also like to make it clear that the findings in this order are only based ou a tentative assessment of the on the material available on record and shall have no bearing lD

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trial which shall be decided on merits based on the evidence placed before the trial court

15.At this junction, it is pertinent to mention that this > Court vide order dated L5-06-2O17 has already dismissed the pre arrest bail petitions of 3 out of the 4 other co-accused who managed a bogus heir-ship certificate and fake and fictitious VF-VII Entry No.79123 dated 20.09.1936 which purported that their deceased father was the owner of 30 acres from Naclass 24 and 500 acres from sea-shore which he allegedly purchased for Rs.BSOOl' on oral statement which enabled the 500 acres of land to be transferred in their narnes. Namely Accused No. 4 Amjad Hussain, Accused No'S i Mohammed Sultan, accused No.3 Aslam Pervez on account of their being no malafides on the part of NAB and there being sufficient material on record to make out a case for the aforesaid accused to answer. Only Accused No' 6 Nasreen Akhtar had her pre arrest bail confirmed on account of the fact that she was a women and was of an old age'

16.In cases of pre arrest bail there must be some element of rna-lafide on the part of the complainant or the investigative agency. In this respect reliance is placed on the cases of Rana Mohammed Arshad V Muhammed Rafique (PLD 2009 SC 4271 and. the more recent Supreme Court case of Mukhtar Ahmad v. The State and others (2016 SCMR 2064l'' l'L-

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17.It is difficult for the accused to expressly prove malafide as was recognized in the recent Supreme Court case of Khalil Ahmed Soomro and others V State (unreported dated 28- + O7-2O17) where it was held as under in terms of proving malafides at the pre arrest bail stage (although this was not a NAB case we consider the finding relevant) at Para 5;

"Para 5. Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hlnts to that effect are avallable, the same would validly constitute the element of mala fide. In this case, it appears that net 1 has been thrown wider and the injuries sustained by the victims except one or two, have been exaggerated and efforts have been made to show that the offences are falling within those provisions of law, punishable with five years or seven years imprisonment. All those aspects if are combindly taken, may constitute element of mala fide" (bold added).

18.Thus, malafides can be deduced/inferred from the particular facts and circumstances of each case'

19.In this case Mustafa Jamal, Obaidullah Pahore and Agha Asghar have pled malafides.

20.With regard to the case of Mustafa Jamai he has pointed to numerous d.ocuments which may at least reflect that his involvement in the case in hand requires further Va o

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probe. It seems these documents were deliberately concealed from him by the NAB. In this respect reference can be made to order dated 20-10-20i5 in Suo Moto No.02/15 before the Court of Mr.Ghulam Mustafa Phul Member (land Utilization) Board of Revenue Sindh whereby the allotment of the land was ordered to be cancelled on a complaint made by the petitioner (Mustafa Jamal) on 03-09-2OL2 and application dated 06-10-2015 and S.161 statement of Muhammed Moosa Khan Rind. In our view these documents seem to be of a material nature with respect to the case in hand and should have been deeply considered by NAB before filing a Reference against the petitioner and even if NAB was of the view tl:at other sufficient material was available to justify the filing of a ^ reference against the petitioner under the NAO these documents should have been disclosed to the petitioner as they would have assisted him in making his defense. As such we find that there is an element of matafide on the part of NAB in not disclosing these documents to the petitioner Mustafa Jamal.

27.We have already held in our order in the case of C'P' No,D-1955 of 2017 Sharjeel Inam Memon V Chairman NAB & others dated 25-lO-2017 that NAB is bound to turn over to .v, the accused documents vuhich it haul come across during their investigation which may assist the accused in his k<

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defense at the time of handing over docuntents under 5'265

(c)Cr.PC. In this respect it is worth reiterating and reproducing paragraphs 57 to 64 of our aforesaid order which are set out below for ease of reference:

"The Prosecution concealing favourable/exculpatory materlal from the accused.

57.Some of the petitioners have contended that the NAB deliberately concealed material which was favorable tq them (both at the bail stage and also at trial)

58.Although there are no specific rules regarding disclosure of exculpatory material which tends to exonerate an accused we consider that this situation is covered by Article 10 (A) of the Constitution which provides as under.

"A.10 (A). Right to fatr trial' For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entltled to a fair trial and due process."(bold added)

59.Although Article 4 of the Constitution through judicial as the due -p.o"""" determination had been regarded clatrse in Pakistan the lBth Amendment through A. f O (e) formally made it a part of the constitution'

60.So what is due Process? BY way of just oneof examp le the 14th Amendment to th e United States Ame rrc a Constitution Provides as under: *AMENDMENT XIV [1868]. Section 1. All persons born or naturalized in the United States, and subject to the j urisdiction thereof, are citizens of the United State s and of the State wherein they reside' No State shall make or entorce anY law which shall abridge the privileges or iniinunities of citizens of the United States; n or shall anY State dePrive any Person of life, liberty or propertY, without due process of law; nor deny to any person within its jurisdlction the equal pro tection of the laws."(bold added) ,4*-) il

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6L. In the case of Brady V Maryland' (373 US 83 (1963) The US Supreme Court held that it was a due process right of the accused to have disclosed to him any material gathered by the prosecution which may tend to show his innocence in the following terms:

"The Third Circuit, in the Baldi case, construed a that statement in Pyle v. Kansas to mean that the &suppression of evidence favorable" to the accused was itself sufficient to amount to a denial of due process. 195 F.2d at B2O. In Napue v. Illinois, 360 U.S. 264 ,269, we extended the test formulated in Mooney v. Holohan when we said: (The same result obtains when the State, although not soticiting false evidence, allows it to go uncorrected when it appears." And see Alcorta v. Texas, 355 U. S. 28; Wilde v. Wyoming, Cf. Durley v. Mayo, 351 U. S 277 285 (dissenting opinion).

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evider.cl is materlal either to gutlt or to punlshment, irrespective of the good )- faith or bad fatth of the prosecution. The principle of Mooney v. Holohan is not punishment of society for misdeeds of a lrosecutor, but avoldance of an unfair trialthe to ihe accused. Society wins not only when gutlty are convicted, but when crlminal trials Ire iair; our system of the administratiou of justice suffers when any accused is treated irnfairly. An inscription on the walls of the Ueparthent of Justice states the proposilio1 for the federal domain: "The Unlted States wins its point whenever justlce is done ""ttaiaty its citizens in the courts." [Footnote 2l A prosecution that withholds evidence on demand of '.t which, if made available, would tend """r""d him or reduce the penalty helps t; exculpate shape a trial that bears heavily on the defendant' tnat casts r:he prosecutor in the rolecornport of an architect of a proceeding that does not with standards of justice-, even though, as- in .the present case, his ,'Ltiot is not "the result of guile"' io ,.. the words of the Court of Appeals ' 226 Md' at 427 , 174 A.zd, at 169". (bold added) u t2

62.The US Supreme Court in the recent case of Charles S.Turner et al V United States (2017 SCMR 1489) affirmed Brady's case (Supra) only highlighting whether or not the exculpatory evidence to be disclosed to the accused by the prosecution was rnaterial to the guilt or innocence of the accused. If material it was to be disclosed. In Charles S. Turner (Supra) it was also held that it was not the role of the prosecution/prosecutor in a criminal trial to win at all costs (i.e, obtain a conviction) in the following terms at P.1503.

"I note that the majority and I share some common ground. We agree on the universe of exculpatory of impeaching evidence suppressed in this case: The majority's description of that evidence, and of the trial held without it, is scrupulously fair. See ante, at 2-6,7-9. I[Ie also agree-as does the Government - that such evidence ought to be disclosed to defendants as a matter of course. See ante, at 10. Constitutional requirements aside, turning over exculpatory materials ls a core responsibility of all prosecutors - whose professional interest and obligation is not to wln cases but to ensure L justice is done." (bold added)

63.In our view when Article iO(A) was added to the Constitution by the l8th Amendment, after length.y debate and detailed consideration of a cross party committee of Parliament, it was not meant to be just a paper right or illusionary right but a meaningful right ioi tfr" accused in all criminal cases especially as it is a fundamental right under the Constitution and we fully endorse the findings and sentiments expressed in Brady's case (Supra) and Charles S'Turner case (Supra)

64..Thus, we expect the NAB investigators as assi"qted by NAB iegat otiicers to consider any material^which they uniover during the course of an inqliryTinvestigatic-rn or before a determination is made whether or not to file a reference whether that material tends to exonerate the accused from the proposed charge and as such justifies the exclusion of the accused from the reference. If it does and the reference is not filed against lhe said accused then that material v2-

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may lose its relevance. However if a reference is filed against an accused the NAB prosecutors at the time of handing over all the material supporting the reference under 5.265 @ Cr.PC should also without request hand over to the accused/counsel for the accused any material which has come to their attention during the corirse of inquiry/investigation which lead to the filing of the reference or is otherwise in their possession which tends to exonerate the accused even to the slightest extent. The Chairman NAB shall take note of this paragraph"

22.With regard to the cases of Obaidullah Pahore and Agha Asghar when the learned prosecutor for NAB was confronted with what material there was against such petitioners to substantiate the allegations made against them by the NAB he was not able to point out any such material. Thus, prima facie it appears that there are tinges of malafides in including t them in the Reference.

23.Petitioner Abdul Lateef Brohi did not raise the plea of malalides and even otherwise after a brief perusal of tire record there does not seem to have been any malafides on the part of NAB against him whether express, deducible or inferred

24.Turning to the cases of the petltioners on merits'

25.With regard to the case of petitioner Mustafa Jamal NAB contended that he vras not a genuine whistle blower ald he had only made his complaint for cancellation of the allotment once he knew his illegal act had come to light' The lv t4

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record shows that he made an initial complaint on 03-09- 2Ol2 which was before NAB received a complainant on this issue from transparency internationa-l which lead to the opening. of this inquiry and ultimately the filing of this Reference. Thus, based on this factor and along with the above mentioned concealed material by NAB we are of the view that this is a case of further inquiry in respect of the petitioner Mustafa Jamal. Since we have already found that ma-lafides existed in his case we hereby confirm his pre arrest bail on the same terms and conditions.

26.Wlth regard to the cases of petitioners Obaidullah Pahore and Agha Asghar we have already found tinges of l malafides in there cases by NAB and the fact that NAB was not able to point out to us any specific material against the petitioners at this stage we consider the cases of both the petitioners to be one of further inquiry. As such we hereby confirm the pre arrest bail granted to both the petitioners Obaidullah Pahore and Agha Asghar on the sarne terms and conditions.

27.With regard to the case of petitioner Abdul Lateef Brohi we have already observed that there has been no ma-la-fide on the part of the NAB,

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28.He was Mukhtiarkar Scheme 33 Karachi at the time when the offense was committed. He has been given a specific role at Para 15 of the reference which reads as under:

"15. The investigation reveals that Abdul Latif Brohi (petitioner/accused no. 1 1) knowingly committed misuse of authority by forwarding attested photocopies of fake and bogus VE-VII Entry No,19123 dated 20.9.1936 artd by being custodian of Record of Rights, he willfully failed to apply his mind to check the veracity of said FV- VII before forwarding the same to Mukhtiarkar, Korangi".

29.Thus, the allegation is different to the allegation against petitioner Obaidullah Pahore who was the Mukhtiarkar Korangi Town which was in essence confined to a failure to check the records.

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30.The case against petitioner Abdul Lateef Brohi is mucir more significant in that he laid the foundations for this mega scarn. Likewise there is material to connect him to the commission of the offense

31.Para 9.8 of the investigation Report sets out the role of the petitioner as under:

"9.8. Role of Abdul Lateef Brohi Mukhtiarkar Scheme 33.

i. Criminal Role of accused No.11, Abdul Lateef Brohi is most vital. He laid foundations of this mega fraud/scam. He misused the letter forwarded by Alt Akbar Hingoro D.O.R. Karachi vide Letter No.Do/Revtktnnt+2t31328712oo4; dated 25.O5,.2OO4, addressed to all DDORs and t?

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Mukhtiarkar "to transfer the registers contalning all the entries belonging to other Towns the same may be entirely transferred in Original to the concerned Town under proper receipt. Under pretext of thls letter dated 25.O5.2OO4, accused No.ll falsely attested the Entries (which were non-existent in his whole revenue record under his custody as Mukhtiarkar Scheme 33 Town), and forqrarded to oflice of DDOR Korangi Town Karachi through a letter dated L3,O7.2OO4, signed by him. ii. Actually the accused received copies of these forged documents, from accused Aga Asgar Ali and accused Aslam Pervaiz and falsely attested the same and forwarded to DDOR Korangi for onward submission to the Mukhtiarkar Korangi Town. The proof of this assertion is that fourteen days before his forwarding letter dated L3.O7.2OO4, on 29-06-2004, accused Aslam Pervaiz attached the same fabricated revenue record and submitted to the office of the DOR Karachi, with his application for transfer of record from office of Mukhtiarkar Scheme 33 Town. Thus collusion and complicity of accused No.1l with accused No.3 and accused No.9 established crystal clear.

iii. The PW 1 also produced three Letter/ Reports dated O7.O4.2OO9 and |2-O4-2O7O, signed by his three predecessor or respective Mukhtiarkar Scheme 33, who also reported that "a11 record of this office has been verified which revealed that there is no entry available in the record of rights maintained by this office in name of Muhammad Ibraheem S/o Baggu in respect of larnd measuring 530 acres located in Deh Dih" iv. Hence through the 161 statements of Prosecution Witness No.l and 2 and the record produced by them Under a Seizure Memo, the guilt of accused Abdul Lateef Brohi is glaringly established. Accused once joined investigation on 1O-O2-2O17 and conceded his guilt. He said he has no defence to justify' He denied receipt of any corruption proceeds for this illegal act. He stated that he had done this under political pressure and under influence. He expressed his intention to pray the Chairman NAB for Tender of Pardon under Section 27 of Nationa-l Accountability Bureau in lieu of full and candid disclosure oI all hidden facts and circumstances by him before the court of Judicial Magistrate. But he never returned to ioin the investigation as per promise despite several corrta-cts.

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y: He is prime accused. His guilt is crystal clear. He is responsible for the whole fraud. He has criminally misused his authority and breached the trust reposed in him by Government of Sindh and has jeopardized the national exchequer to the tune of Billions of Rupees.,, (bold added)

32.We have examined a number of the documents referred to in para 9.8 of the investigation report set out above, It appears that letter dated 25-O5-2OO4 was a general letter and gave no authority whatsoever to the petitioner to tamper with the record. It appears that it was under the camouflage of this letter that the fraud was committed by the petitioner. By letter dated 73-07-2004 duly signed by him he then forwarded on the documents which he had illegally managed by misusing his authority. If the petitioner had not forwarded t attested photocopies of fake and bogus VE-VII Entry No.19/23 dated 20.9.1936 which it was his duty to check being custodian of the record this land scam of which he was an integral part could have never taken place.

33.Thus, since there has been no malafides on the part of NAB and as discussed above prima facie there is sufficient material to link the petitioner Abdul Lateef Brohi to the commission of the offense for which he is charged in the reference his pre arrest bail granted to him earlier by this court stands recalled with immediate effect. v l8

34.In summarJi, pre arrest bail is confirmed on the same terms and conditions to petitioners N{ustafa Jamal, Obiadullah Pahore and Agha Asghar Ali whilst the ad interim pre arrest bail granted by this court to Abdul Lateef Brohi is recalled with immediate effect.

35.These are the reasons for our short order dated 26-07- 2018 which is set out below.

"We have heard learned counsel for petitioners in the captioned petitions and also Spl. Prosecutor NAB' For reasons to be recorded later oo, order dated O3.O4.2O17 passed in C.P.No.D-I979 of 2017 whereby petitioner Abdut Latif was granted ad-interim pre-arrest Uait stands recalled, whereas interim pre-arrest bail granted to petitioners in rest of the petitions stand confirmed on the same terms and conditions."

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