Irfan Khan Yousuf Zai (Petitioner) VS The Chairman NAB and Ors (Respondent)

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IN THE HIGH COURT Otr'STNDH, r{ARACHI Before Mr. Justice Ahmed Ali M. Shaikh,CJ. Mr. Justice Mohammad Karim Khan Agha,J Petltlon No, and name of oetitlone r alono wlth counsel, 1. CP No.D-3877 /2017 Muhammad Idress V. NAB & others Muhammad Idress S/o Abdus Salam Through Mr. Khaleeq Ahmed, Advocate.

2.CP No.D-4862/2017 Jahanzatb V. Federation of Pakistan & others Jahanzaib S/o Jahangir Through Mr. Sardar Anjum Shiraz, Advocate.

3.CP No.D-4984/2017 Irfan Ahmed V. NAB Irfan Ahmed S/o Muhammad Mian Through Mr. Ali Gohar Mashroof, Advocate.

4.CP No.D-3854/2017 Syed Nasir KazmiY. Chairman NAB & others Syed Nasir Kazmi S/o Syed Gha-foor Hussain Kazmi. Through Mr. Muhammed Illyas Khan and Muhammed Farooq, Advocates.

5.CP No.D-367O12017 Mushtaq Iqbal Khan V. Chairman NAB & others Mushtaq Iqbal Khan S/o Muhammad Iqbal Khan. Through Fayaz Ahmed, Advocate'

6.CP No.D-423312016 Syed Atif Hussain Naqvi V' Chairmani NAB & others Syed Atif Hussain Naqvi S/o Syed Abid Hussain Naqvi Through Mr. Abdul Wahab Baioch, Advocate

7.CP No.D-5864 l2016 Irfan Khan Yousuf Zai V. Chairman NAB & others Irfan Khan Yousuf Zat S I o Dilawar Khan Yousuf Zai Through Mr.Mahmood A Quershi, Advocate

8.CP No.D-6O52 12016 Syed Rizwan Ahmed & others V' Chairman NAB & others.

1.Syed Rizwan Ahmed S/o Syed Nabi Ahmed Azad' 2' Muhammad Kamral Warsi S/o Yaseen Warsi , 3. Akhtar Rasheed S/o Muhammad Abdul Rasheed , 4. Sarfaraz Ahmed S/o Bashir Ahmed , 5. Muhammad Jumman S/o Lal Bukhsh and 6. Jahanzaib Iqbal S/o Muhammad Iqbal ' Through Mr Abdul Wahab Baloch, Advocate'

9.CP No.D-33O5/2O17 Syed Gul Hassan ZatdiV The State & others Syed Gul Hassan Zatdislo Syed Sardar Hussain Zatdi. Through M/s. Aamir Mansoor Qureshi & M. Rehman Ghous, Advocates. lL

r/l f OIbp No.D-3320/2017 Muharnmaci l(amran Warsi & others V. Chairman NAB & others'

Rizwan Ahmed S/o Syed Nabi Ahmed Azad,3' Sagheer Ahmed S/o Salamat Ali , 4. Akhtar Rasheed S/o Muham,ma d Abdul Rasheed, 5. Sarfafaz Ahmed S/o Bashir Ahmed; 6' :

Muhammad Jummdn S/o Lal Bukhsh and Jahanzaib iqbal S/o Muhammad lqLlal .

Through Mr Abdul Wahab Ba.loch Advocate

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ricp No.D-332 I l2or7 Rashid Ali v. Chairman NABr&;1 r.

others r' 1i I '

Rashid Ali S/o Syed Safdar Mian Through Mr Abdul Wahab Baloch Advocate "r

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ti. Cp No.D-3338/20 i7 Muhammad Feroz V' Chairman Muhammad Feroz S/o Haji Shoukat Islam' ' l. " i Through Mr. Mushtaq A\med Khan, Advocate 13:CP No.D-3418/2017 Shaikh Farid V. Chairman NAB & others

1.Shaikh Farid S/o Shaikh Yousuf and 2' Khuda Buxi S/o Gul Muhammad Soomro Through Mr. Muhammed Nizar Tanoli Advocate i' vlcP No.D-3468/2017 Muhammad Hanif Khan V: Chairman NAB & others '

Muhammad Hanif Khan S/o Asghar Ali Khan' ' Through Mr. Naheed Afzal Khan, Advocate' 15.-cP No.D-3508/2017 Akhtar Rashid & otheis V. Chairman NAB & others.

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1.Akhtar Rashid S/o Mehmood Abdul Rashid ' 2' Junlan $/ o

Lal Bux and 3. Syed Nasir Kazmi S lo Syed Ghafoor lluSsAin Kazmi, Through Mr. Abdul Wahab Baloch Advocate Counsel for the ResPondents.

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Mr. Yassir Siddiqui, Special Prosecutor, NAB' Dates of Hearing: tg-lo-2017, O2-tl-2017' 19-r2-2O\7 and.2l-12-2017

Date of Order: 23-12-2017 tl

ORD.ER

Mohammed Ka rim Khan Aq ha. J Throu gh these Petition5, ad interiin some of the above named petitioners were grainted ilu

{tz pre arrest bail by thrs court vide various orders in connection with rnqurries/ investigattons being conducted agarnst them by the National Accountability Bureau (NAB) in relation to acts of corruption and corrupt practices falling withtn the purview of the National Accountability Ordrnance 1999 (NAO) regardrng a china crTtting/ housing scam by workers of the KDA in connivance wrth other persons (beneficiarres) some of whom have also been arrested and have applied for post arrest bail, which lead to NAB filing Reference 14 12077 Tlre State v Muhammed Nasir and others under S.9 NAO for the petitioners involvement in acts of corruption and corrupt practices.

2.The brref facts of the case as per reference are that the Karachi Development Authonty (KDA) is tasked with development rvithin Karachi City. For that purpose KDA had reserved a number of plots rn KDA Scheme 36, for amenity purposes rvhich could not be allotted / exchanged I transferred for residential/ commercial purposes ln any manner. The officers / officials of KDA narned tn the reference however illegally / unlau'fully misused/failed to exercise their authorlty rn allotting / transferring 23 amenity plots in Gulistan-e-Jauhar, KDA Scheme 36, Karachi by unauthorized / illegally creating 296 residential plots (China Cutting) for pecuniary benefits I illegal gains for the co-accused benefrciaries named rn the reference who tn connivance with the KDA officials received these plots through fake ailotments, challons etc and thereafter sold on n/

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the same to bona fide purchasers who were completely unaware of the scam thereby making huge profits for themselves and causrng a huge loss to the Goveinment exchequer. The detarls of these residential plots are set,oi.rt in the relerence in table form at para 2 and in ,order to avoid repetition are not set out again rn this order.

3.That NAB's investigation revealed that the initial allottees of these plots were either fake or denied to have applied for aly allotment / transfer / shifting of subject plots in KDA. As such these allotments are fake and fraudulent. These fake allotments ald illegal transfer of files of above- relerred plots by way of shifting was managed by shifi.ing department of KDA (some of the official accused named in the reference) in connivance with private persons / , beneficiaries / co-accused named in the reference. In this regard, fake and illegal transfer challans vrere fraudulently prepared by officials of recouery department of KDA named in the reference. These carved out plots were later on clandestrnely sold to the general publc by private persons named in the reference (marnly brokers and estate agents) in connivance with KDA officials hence the KDA officials named rn the reference along with the beneficrartes named in the reference have committed acts of corruptron through their mrsuse of authorrty/ farlure to exercise their authority in order to benefit the beneficiartes whtch caused a massive loss to the Government exchequer amounting to RS 1,439,gOL,7L4 and lead to the filtng of the' aforesaid

ttq reference by NAB under the NAO on 2B-O4-2O|T whichiis now : l: ,l' proceeding before an Accountability Court in Karachi, : . , General Observations

4 We would like to make it clear that the.1ip61ng* ih; this order are only based on a tentative assessment of the material available on record and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court. j , ,

5.At the outset, as we have done before in other similar NAB cases, we observe that cases of white collai crime are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be viewed in a holistic manner and not in isolation. This is because in most cases the offence could not be committed without the active involvement of all the accused in the chain of events which lead to the commission of the offense. However, notwithstanding this observation it is settled law that in cases of bail each of the accused needs in some way to be connected with the alleged offense through a specific role and in the case of non bailable offenses such as this there are reasonable grourids for believing that the accused is connected with the commission of the offense for which he is charged.

6.For offenses of corruption charged under the NAO (white collar crimes) the Hon'ble Supreme Court in the recent case of Rai Mohammed Khan V NAB (2017 SCMR P. 1152) l.r-

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has emphasizecl that the grant of bail in such cases must be ', '; .'t. ', ,l ',

construed strictly and, rigidly even if, as in that case ,l referred to above, the amount involved was on the Iesser side ,,,r, being only approx RS 12M (as opposed to billions of Rupgds through the land scam as in this case) in the ,fol:lowirlg i terms at P. I 154 para 7;

"Under the principle of law and justice, each bail petition is to be decided on its own merits and the law applicable thereto, however, this Court cannot remain oblivious ol the undeniable fact that the tendency of corruption in every field has become a threatening danger to the State economy, strikirlg on its roots. The public money, aliocated for social sector and economic well being of the poor peoplb, is consistentlSt embezzled / misappropriated at a large scale and why the majority of the popiilation is deprived of essential daily utilities, like pure drinking water, health care and education facilities, etc. It has become the foremost obligation of each and every institution, including the Judicator, to arrest'this monster at this stage, before it goes out of proportion, posing threat to the very survival of the State and State economy, therefore, the Courts shall apply the Anti-Corruption laws somewhat rigidly, once in fact the case is made out, at bail stage, against the accused ,person. Distinction, ho."vever, is to be drawn between the ordinary criminal cases and of corruption on the above analysis and grounds, while dealing with bail matter to an accused person,, charged for such like crimes and also at the time of coriviction, once the case is proved against him then, rcourts are not supposed to show any m'ercy by taking a lenient vierv in the matter ol sentence.l' ; i r'. i'i 1l1,.li::i., 7 Indeed, as ir.r Rai Mohammed Khan's case (Supra)rit ils Y extremely tragic that in this case that larid iwhich was originally allocated for amenity purposes suoh as schools; r.

parks, playgrounds, community centers etc rvhich'himeditb . ,, i 'r ' 't'l;',| l:' i

benefit the local community was wiped out by,th'e grgedlof the - "" ':'"'lt ' : trl:i I{DA olficials in orcler te accommodate their b'lue ieyeid bpyq ,l

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and land maia through estate agents/brokers and other beneficiaries which is a phenomena which has plagued and ,.. .:1 I : i

continues to plague Kardchi through such,illegal activities irr order to make money. at the overall e4pen?e l;ii9,fj :thf .' ' ,il , ,r infrastructure of the city and well being ot'tne iinfra-Oifa.n1s'iif the city. This heinous crime of usurping amenity'plots and constructing residential properties through houses, apartments and skyscrapers has placed an extra burden on the infrastructurd of the city in terms of ' electricity, water, sewage etc which the city is bursting at the'Seams to meet and in many areas such vital utilities and services are either rationed or not readity available to the people of the citY who are left to suffer ,in silent but disgruntled misery with no one to turn to who can adequately, timely and efficiently address their legitimate grievances.

8.Such illegal land changes from amenity to residentia! or

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commercial purposes. (which is absolutely prghibited uqSer the law under any circumstances) also gives rise to,,ot!e,1 areas of organized crime such as the tanker mafia which is currently doing booming business in Karachl Sqqh illegal acts ultimately all lead to detrimental side effects for :i Y the inhabitants of the city which adds to their misery' No wonder the Supreme Court in its wisdom has lin a recen!

order blocked the further construction of high risesiin the city so that further damage to the infrastructure of the ctty can be

minimized. A part from the lack of water and sewage etciby

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eatrng up these amenitv plots with housing this u-egs the question where r.r,ill the children play u,.ith no play grounds or parks? How u,iil local people be medically treated when thb land a-llocated for hospitals has been given over to the building mafia? Likewise how lr,,ill chrldren, receive ,., education when the land allocated for the construction of schools has been given over to the building mafia? How can our envtronment sustain such a concrete Jungle?

9.In this respect the Hon,ble Supreme Court vide order dated 27-11-2O17 (unreported) rn Crl.Op.No.T K/20t7 y Crl.O.P. l1 Kl16 in the case of Ms Sabiha parveen V Syed Nasir Abbass DG KDA held as under at para2.

"lt is also noted that the amenity lands of Karachi including present one either allotted to large number of peoples or have been allorved to be encroached includrng the lands situated on University Road, North Nazrmabad Road, Kashmrr Road etc. Tlese are the lands meant for recreation of peoples of the area and for benefit/enjoyment of citizens of Karachi. Whatever allotments and illegal encroachments on these amenity plots, the same will be cancelled and resumed by the KDA and all boundary walls shall be demolished and report in this respgct be made avarlable belore the Court on the next date of hearing" (bold added).

10.In continuatron of the aforesaid order on 29-11'2017 the Hon'ble Supreme Court also held as under

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"We observe that no substantial compliance of this Court's order has been made in that there ' are thousands ol encroachments in Karachi so also the illegal allotments. It is pointed out by the, Senior Director Master Plan that there exist 35OOO plots allocated at L12 sites in KDA schembs and townships duly noted by the Master Plan Department which were amenity plots or meant to

srB be left open as per master plan but these plots have either been encroached upon or have been illegally allotted or ,occupied pursuant' to forged ar-rd fictitious allotments/leases. The Director, General KDA states that he is going to seriously look'intg the matter and shall devise means .by- which 4ll these 35OOO plots at 112 sites ', of KDA scheme / townships will be got vacated,and recoverCd and put to use for which they were ,origirtally meant in the master plan i.e. for amenity and ' as i gpen space. In this respect, we expect that Government of I Sindh including al1 the departments ol local administration shall provide ful1 assistance to thp KDA for implementing the plan of vacation and recovery of all these 35000 plots at I 12 sites of KDA schemes/torvnships." (bold added)

11.The above mentioned orders concerned the restoration of the illegally allotted/encroached upon amenity ptots'which li:

has in effect virtually turned Karachi into a concretp',,', jgngle

whilst the currenL NAB reference against the petitione.;, fo'I which they seek bail in this order, concerns t$e plosercutioli of some of those allegedly responsible for epgaging'i" IhlP illegal activity of allotting amenity plots for other purposes through the practice commonly known as chiha cutting''r '

12.The seriousness of this crime of chjna cu,lllftg .IaP recently emphasized by. the Hon'ble Suprerye,Couf T. th:

case of Mumtaz Ul Haq v NAB in Civil pqtiticll No, oifl< cif 2017 through its order dated lg-12-2o,L7,(rrlJQPorlgg) whereby in dismissing the petitioner's, leave for Sppba| petition against the rejection of his 265 (K) CrfC qpplication by this court in a NAB reference concerning china cutting the Supreme Court obsErved as under at para 4 of its order: i"

iti "4.The allegation against the petitioner in the Reference is that he in capacity as Additional Director (R-I), KDA has issued illegal allotment l/-

s-,1 orders of plots of Sch-eme No.36, despite . the that original allottees did not appear be^foret him, fac.t and attorney holders held only notarized ,Cfas whii:i were not duly registered. The fact that the petitioner has issued iilegal allotmenr orders ana tf,at tio ;;;';; the original allottees but to the persons lruroo.,inn iJ hold unregistered GpAs itsell needs pro;f t, *ur- ,""f evidence. The allegation against 'the apparently is of substantial nature :in ,"tiiiJ".. thal the alleged plots were created on land rese'rved for water conduit of KW&SB and High Tension l,int; of X_ Electric. The allotment as ilteged. in the nelerenie has been mqde that oJ aienitg plots," *;;;; obulouslg is a serious attigation aid.'needs proper adjud.ication bg the Court. The High Court in the impugned order has dealt $,ith the maiter ""a "..rg.,.J good reason lor not accepting the plea of acquittai oi the

petitioner under Section 265_K Ci.p.C. fhe petitlon is, therefore, dismissed and leave refused.,,(bold and italics added)

1 3. The modus operandi of this scam : is a classic example of the practice otherwise known as china cutting. In this case there were a number of amenily plots which should have been used for the welfare.of the peop e such as for parks, schools, hospitats etc as: d eslgnat ed amenity plots can never be used for any-,:,otheri purpcise, However in order to make money the shifting depJitment of the KDA in connivance with the recovery dep.rtment ofi:the KDA and beneficiaries most of whom were brokers/estate agents used the following modus operandi., ,The shifting department illegally converted the amenity plots irinto l

plots for residential use. Thereafter in the gar,b of ielocating fictitious people who the Government of Sindh (GbS) had allegedly purchased land from they created .fictitious purchasers who paid nothing for the plots whioh were carved out of the amenity plots who either did not exist, were dead, had their CNIC misused .and whose nalne was 'used;wi -ror-rt

.1:: i's2G their consent and knowledge. Thereafter ,,,, |ll ll - thdr fqle bf, the

KDA recovery department kicked in as thgy deliberately ' ;: .-,il :

failed to verify the existence of such non existipg purdhaser,s and transferred the' 'plots into the name of the 'benefiqiaries

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without payment who,were mostly brokers / estatel g.ge.ts, wil o then sold on the same for lacs of rupees per plot: which they split with the KDA official accused.

14.The result was that the KDA officials and. beneficiafies made vast amounts,of money, loss was caused !o the public exchequer, and the people of the area have been deprived of parks and other recreational facilities where their children could play, "the so cal1ed lungs of the city'l, or a hospital; or,a

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school etc which would have benelited the local community.

15.As the above modus operandi indicates all the accused in the reference connived together to give effect to their plan of iliegal enrichment by misusing their authority /failing to ':, i, i exercise their authority and benefiting themselves and others In elfect it is a case of a joint criminal enterprise where each of the accused plays his role in achieving a common crimihal objective which cold not have been achieved without the active involvement and connivance of each of the , other accused who each played his role in the criminal ' abt the

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question being only wirether his role in the criminal:d.ct. was to a lesser or greater extent.

16.In NAB cases where land has been given away illegally to beneficiaries and the building mafia at throwaway priceb it .: ,. ' t,

sPl is often beheved that only the brg hsh at the top are responsible whereas the so called small fry such as tapedars and lower level KDA clerks as in this case bear little if any j responsibillty and should be excused. ln our vibw Where land 1S illega1l1, given arvay, in such circumstances this is not always the case and is largely a misconceived belief. This is because it is the so called small fry who could have prevented the whole land scam (which often turns out to be colossal in terms of loss to the government exchequer) by simply refusing illegal orders or not conniving with each other and more senior officials and the lartd mafia.

In land scam cases no scam could be committed without the active connivance with those who are atlegedly at the bottom of the chain of criminality. This is because very often rt rs they rvho have custody of the land records, change those records, or ailow such records to be tampered wrth or illegal challans to be made or allow dummy purchasers or transferees to be lnserted in documents. Thtis, they are in our view equally as liable as those at the top of the chain of criminality in land scams as no land scam ,could' be perpetuated without the active connivance of those at the lower end of the chain who have custody of the land record and move the same through their, various approvals up the chain of criminality to the lultirnate land mafia/ beneficiary who sells the land on for vast profit to an unsuspecting bona fide purchaser. In our vtelt, such plea of lack of seniority rn land Scam cases or blindly, unquestioningl), follorving illegal orders of supertors in breach

se2 ol the \/arlous rules, regulatrons and llaws rs , no defense/excuse to enable al accused to escape tliabilrty,

17.In thrs case the chain of criminality started from the KDA shiftrng officers, then proceeded to the ,KDA recove(y officers and finally to the beneficianes/ brokers/ estate agents who illegally sold on the plots which had been illegally made through china cutting. The KDA shrftrng department, the KDA l

recovery department and the estate agents/brokers all connrved wlth each other rn order to achieve thrs unlawful obj ectrve

18.In considering these petltlons for pre arrest bail and post arrest bail tvrth respect to the KDA accused we have also taken rnto consideration that these officials owed , pu.t .rlo.

duty of care to the cttrzens of Karachi to protect its precrous amenit], plots frorn china cutting, land grabbrng and the land maha so that the citizens could enJoy all the benelits of a well organrzed and structured clty whrch would rnclude parks, plav grounds , schools, hospitals etc and the fact that all the I{DA officials were not no\rrces in n,orking in ther KDA but were senlor, seasoned, experrenced officers who were well ariare of all the relevant rules and regulatrons with regard to "shrfting" and "recovery" and the fact that they would have known that the status of amenrty plots could never be changed by themselves under anv circumstances.

Post and pre arrest bail

Pre arrest bail and malafides

19.Some petitioners llave applicd for post arrest bail ra.hijst others have applied for the confirmation of their ad interim pre arresr bail.

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20.It is now well settled law that pre arrqst bail., is an extraordinary relief and is only available in cases where there has been malafide on the part of the complainant or the investigating authority In this regard reference may be made to the case of Rana Mohammed Arshad V Muhammad Rafique (PLD 2OO9 SC 427) which was more recenrly retterated by the Supreme Court in the case of MuX<htar Ahmad v. The State and others (20 16 SCMR

21.None of the petitioners during oral arguments have submitted that their has been any malafide o.,',n. part of the NAB in filing the reference against them and or, ;*1.*rrrr.r* the record we have lound no materiai to lsuggest such l malaf.ide and as such prima facie none of the petitioners are entitled to pre a_rrest bail. As such the petitions fof pre i ,r,' arrest bail ancl post arrest bail can be examined together on merits based on the materiai before us to see whether or not rtheie.is sufficieut material on record to connect the petitioner to the offense lbr which he has been charged in the rdference: ..; i:i

Arguments and findings on pre arrest and post arrest bail petitions on merits.

22.In all petitions learned special proseeutor . NAB vehemently opposed the grant of post arrest:bail ..ahd rthe k

52q confirmatlon of pre arrest bail as the case mav be He took the court through varous documents and submrtted that through these documents there was more than sufficient matenal on record to show that the petitloners were all connected to the offense for u,hich they had been charged in the reference and as such all petitions for post arrest bail should be dismissed and all orders granttng ad rnterrm pre arrest bail should be recalled as the case may be.

23.We have consiclereci the arguments of the parties, examinecl the record aIId considered the relevant case law

KDA Shifting Department petitioners.

24.Reference to the S. 161 statements of Mohammed Jameel and Mohamed Saleem lully show the rllegal shifting through china cutting and the petrtioners rn that department who ',vere rnvolved rn thrs illegai activrty

25.Learned counsel for the petitioner,s Syed Atif Hussain Naqvi and Rashid Ali who were DDO,s shifting for KDA. contended that they were completely innocenti that they were never posted tn the area where the land scam took place; that they had not srgned anything and that they had nothing to do with the plots and as such their pre arrest bail should be confirmed.

26.Learned counsel ibr petitioner Irfan Khan yousuf Zai who was also DDO shifting submitted that his case rdas on a better footrng to the above mentionecl DDO,s Shrftrng. Thrs

seS was because according to him he was ,ruua1 l1.ost 'r''ir'l shifting branch as he was in the encroachment branch and ;'.,,:'.,i, that the investigation, against him was unfair and he was completely innocent and as such his pre arrest bail shquld.be ''':'l;''

confirmed. In support of his contentions he plaqed relia.ilce on Tariq Bashir V State (PLD 1995 SC 34) and Abdul Aziz Khan V The State (PLD 2003 SC 668)

27 The petitioners have been given a specilic role at para 6 of the reference which reads as under:

6."That the investigation revealed that the aCcused No. 3, 4, 5& 6 namely Muhammad Arif Khan, Syed Atif Hussain Naqvi, Rasheed Ali Khan and Irfan Khan Yousuf Zai all in the capacity of DDO (shifting) KDA also signed note sheets for illegal transfer of. thede residential plots on amenity areas, despite the fact that initial allotment was based upon fal<e and managed documents and none of the original allottees had appeared before any of them. In the samb capacity, the accused No.3, 4, 5 and 6 also signed transfer letters. of these plots".

28.All the petitioners were DDO's in the 'shifting department of I(DA. The contentions of the petitioners 'are completely belied by the S. i 6 1 Statements qf ; FW's Mohamrned Jameel and Mohammed Saleem .who implicate thern in the scanr and most importantly the NAB has shown us numerous transfer orders which bear their signhtupels. They did not verify any documents and did not meet'any ol ll' the original allottees who it has come on record were fictitibus persons. Altl-rough tl-rey belatedly tried to deny' such sign;rtutres these signatttres match those on their valaknamas ancl the.,, ]r;rve nor. raisecl 1,1-ris issue before the trial court. In W i

{zk our view this appears to be a complete afterthougirt jin o.d".

to escape liability. In our view there is suflicient matqriat:-qn record in the shape of S.161 Cr.pC statemgntl,gf .'" 1 'j plot transfer orders duly signed by them ,.'facie connect the petitioners to the offense for whicl;1 have been charged and thus their ad interim pre arrest lbail is recalled with immediate effect.

29.With regard to the.case of petitioner Irfan Khan yousuf Zai we do not find his case to be on a better footing than the other DDO Shifting petitioners mentioned above and ihe cases he has relied upon to be ol iittle, if any I assistance to him. The same considerations apply to him as to the other

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DDO shifting officials, Whose case was dealt with above. He has been given a specific ro1e, the S.161 statements of Mohammed Jameel and Mohammed Saleem fully implicate him in the same and NAB have shown us specific irp.rrrsfep orders which bear his signature under the designation of DDO shifting which completely belie his clairn that hel.was not in the shifting department and in the anti encroachment department, his signatures match those on his valakanama and his counsel frankly. conceded that he has not disputed the genuineness of his signatures on the plot transfer orders Y before the trial court 4or has he ever claimed tl{at the investigation against hirrr was unfair Both these.rassertions appear to be mere after thoughts. Thus in our view there is sufficient material on record to prima facie .connect the petitioner to the olfense for which he has been charged and as

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such his ad interim pre arrest bail rs recalled rr.ith rmfnediate effect.

KDA Recovery Department petitioners,

-( 30. Reference to the 5.161 statement of Sycd Ahmed Noman fully shows the rllegal acts of those petrtioners rn the KDA recovery department lvh o were rnvolved rn the illegal act of chrna cutting once the initral rllegai work had b...rllo.. by the KDA officials in the shifting Department as mentloned earlier in thrs order.

31.Learned counsel for the petitioner's Syed Rizwan Ahmed, Muhammad Kamran Warsi who were DDO,s Recovery for KDA contended that they were complete$ lnnocent; that they rvere never posted in the area where the lar-ld scam took place; that they had not srgned anythrng.and that they had nothing to do r.vith the plots and as such therr pre arrest barl should be confirmed.

32.The petrtioners have been given a specihc role in paraT of the reference which reads as under:

"That the investigation revealed that the accused No. '7, B, 9 and 10 namely Syed Rizwan Ahmed, Nisar Hussain, Muhammad Kamran Warsi, and Wasif Jalil all rn capacrty of DDO (Recoverl') KDA knowingly approved transfer challans of these residential plots which u.ere carved upon amenity plots clesprte the fact that rnrtial challans rvere fake and the amenity piots cannot be allotted for residential purpose".

33.Once again their posrtton 1S completely beliedr by the docurner-rts on record r,l,hich clearlv shou, that both of the

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petitioners signed the challans which they rgceived from,1he recovery clerks and made absolutely no effort io ,veiify :ti.,"rn or call an-y person ancl thus in our r,ier,v they were hand in glove r,vrtir the recovery clerks and played anr instrumental part in allor.r'ir-rg this land scam to come to fruition. Had ther- carried out there functions properly the scam could have been avoided instead they were ail on board ivith a view lto illegally benefiting themselves and others. As experienced KDA offices they would also have known that the.land in question were amenity plots and in no circumstances. could,it be given to either residential, commercial or any othenuse.,b,ut l instead they played an active part in the illegal act bf :ch-ina cutting and as such there is prima facie sufficientrmaleria}jto ' : l, connect them to the offense for which they have beep;pharged and thus the ad interim pre arrest bail of ther petitipners iS ,l recalled with immediate effect, , ,., '

34.Learned counsel for the petitioner's Akhter Rasheed, Kuda Bux and Sarfaraz Ahmed who were superintendents .i,i (recovery) for KDA contended that they were completely rnnocent; that they were never posted in the area where the '.t: . ::i'., land scam took place; that they had not signed anlthing ancl ''I r' !'

that tirey had nothing to do with the plots and as such ttieir pre arrest bail should be confirmed.

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35.Learned counsel f,or petioner Muhammed Hanif Khan who was also a superintendent (recovery) for KDA t..i submitted that he was completely innocent; that he had .r'i:l:,ll nothing to do with making the challans; that he was 1.]unipr rr I I

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officer without any responsibility and ,he. did: , not, sign anything and if he did it was do.re or'" politically high ups and as such his pre arre t bail Sh confirmed.

l'r Jo. r ne pettttoners have been given a specific role at of the reference which reads as under:

.Ihi,^ the investigation revealed that the accused No. 11, 12, i3 and 14 namely Akhter n""f,."a, fi"aJSr; Soomro, Sarfaraz Ahmed and Muham*ia.rr^"irrari Khan- were Superintendent (Recovery) KDA and ,lgrr"J transfer challans knowingly that tle initiai chaiians were fake and the amenity plots cannot be allotted for residential purpose,'.

37 . The petitioners were superintendents bf recovery and being experienced KDA officials would have known that it was iilegal to use amenity plots for residential or commercial purposes yet they deliberately with malafide intenticins rplayed their part in altowing this iltegality to be done Uy Slg,rl;f ,,1-,. ,'i: .::, .t, i' transfer challans copies of which have been shown: tq us qy ii NAB. Thus, they also played their part in this illegal act:of china cutting and as such in our view there is #flicient material on record to prima facie connect them to the]offense I t:

for which the have been charged and as such their:ad jnterim pre a-rrest bail is recalled with immediate elfecil : i , r il

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38.With particular regard to the case of MuhammJ[ ,.rr,, Ali Khan the petitioner was a recovery officer in the KDA and once the challan was received by him its was frls ituty,to verify it which he failed to do; the challon'uoo"r.r. to le rale;

there is no collection receipt; no occupancy . value is

mentioned. Reliance is placed on the S.161 sthtemen w Humayum Azrz. The petitioner,s assertion that he did , ;. ,'i any chaltan is comptetety betied by the documenl *n}ir.],1i9 NAB has shown us which bear his signature/iniiiuf*;.,,flil iadt that he may have been pressurized by a po[ticat partyf;ria ':i high up is no defense to his illegal actions. The petitioner,s role in signing the chalrans was one of the factors which enabled this scam to take place and as such he was aiperrt of it. In our view there is sufficient material on record to prima ;i';'

facie connect the petitioner to the offense for :which, he has been charged and as such his ad interim pre, arrestiibail ,is recalled with immediate effect.

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39.Learned counsel for petitioner Syed Nasir. Hussain Kazmi who was a recovery clerk in KDA at the time when the offense was committed contended that he was completely innocent; that he was only a lowiy clerk; he did not verify any challans as it was not his job to do so; the challans we're then forwarded to the DDO; he was only concernecl with S-iOlof the plots; that he was only temporarily filling in for another clerk and there was no evidence against him and.as Such.he should be granted post arrest bail. Learned counsel for petitioners Muhammed Jumman, Jahanzaib, :Iqbal,

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Sagheer Ahmed and Shaikh Fareed (who are on interim pre arrest bail) made similar argLlments as petitioner.,syed. Nasir I{ussain Kazmi a : 1 i'

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40.The petitioners have been given a specific role a|para 9 of the reference which reads as under:

"9. That the accused No.15, 16, 12" lB and 19 namely Mohammed Jumman, Sagheer Ahmed, Jahanzaib Iqbal, Sheikh Fareed and SyedlNasir Hussain Kazmi, knowrngly initiated tiansfer challans of these residential plots carved out from KDA amenity plots in capacity of Clerk (Recovery)'. The accused were 1n league with each other,,.

4I. The material on record revea,ls that it was the job of the petitroners to verify the challans and that they have been stgned by the petrtroners (Reliance is placed on g. 161 Statement of Syed Ahmed Noman and other documents on record). Some of the challans on record have been initiated by the petrtioners and are signed by the petitroners. Before fonvardrng tt to the DDO the petrtioners should have checked the earlier owner's documents, challans and called him in their presence. The petitioners however did none of these thrngs and instead allowed plots whrch had been allotted tdra fake person be allotted to a beneficiary. Had.the petrtioners carrted out their responsibihties and function oI checlong the l

earlter challans thel' r,vould have found that earher allottees did not exist and thus could have prevented the scam. Thus we find that the petrtroners botl-r mrsused their authority and failed to exercise their authority which unduly, favored the

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beneficjaries ald caused a loss to the Government exchequer, As such \\'e are of the vierv that there is sufficient material .on record to prima lacie connect the petrtioners to the offense for whrch they have been charged and as such the post aarest barl petrtion of petitroner Syed Nasii' Hussarn Kazmr rs

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drsmissed and the ad intenm pre arresr barl granted to petitioners Mohammed Jumman, Jahanzarb Iqbal, Sagheer Ahmed and Sharkh FLeed is recalled with immediate effect

B eneficiaries t

42.Learned counsel for petitioner Mushtaq Iqbal who was a beneficrary of 2 of the fake plots which had been rllega1ly carved out of .an amenity plot and had sold the lrt ,on same at a profit contended that he was completely i4nocent;

i that he had only sold on the plots for a small amount being less that 2 crores; that,he was a bona fide purchaser; that there was no evrdence against him and as such he should be granted post arrest bail

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43.Petitioner Mushtaq Iqbal has been grven a specific role I in the reference at para 24 which reads as under;

"That the investigatton a-lso revealed that the abcrnsed -No 21 namely Mushtaq Iqbal (private pe."o., ' 7 beneficiary) in connivance of wilh KDA oflicials -":39.d 2 fake piots(numberrng R-L17, R-I/32 located at ST -22 Block 15, Scheme 36 Karachr) and furtheir sold those plots and caused loss to the national exchbquer to the tune of Rs. 10,876 ,49I1:" .

44.We find that there is no material on record to,show that petitioner Mushtaq Iqbal ever purchased the plots which he sold. Rehance is placed on the S. 161 statements of pW,s

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Anwer Mehmood and Mr.llaroon. That he in connivance with the KDA officials was one of the links wrth the KDA,official accused who being a broker/estate agent was easily able to sel1 plots in the open market to unsuspecting purcha'sers and h

't, fz'z 'r ;], as such he r,i,as iltegailj, Lllottecl the plots bv the KDA olficials i, so that he could sell them off at a prolit and split:the sarne betr.r,een himself and the KDA officials.

S.161 Statemlnts of ^ t, i .;

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l)urcnaser lrom him o[ Anu,ar Mehmood. l

and iFaha.j Haroon shol. that h. .eceiued the purchas.

*o;"r''a. Oo,n plots which were rllegally given to him at no cost and thus he is a beneficiary of this scam. Hence we find that:rtheie is prima facie sufficient material to connect,.him lto the offeilse

which he is charged with and his post arrest bail petition:is hereby dismissed.

45.Learned counsel for Mohammed Idress 'submitted that he was a private person and that he was a.bota.fide purchaser of 2 plots as opposed to 3 piots NAB had alleged he purchased; that he was completely innocent and \ehenr he sold on the plots in question he complied with all : codal formalities such as ad,vertising his sale etc. and as such he was entitjed to post arrest bail.

46.He has been given a specific role in the reference at para I't 17 which reads as under:

"17.That the investigation also revealed thatr. the accused No.27 namely Muhammad Idress martaged fake liles of 3 plots(numbering R-9, R-3 1, R-44,,loc;ed at ST-1, Block 15, Scheme 36, Karachi) and sold those plots and caursed loss to the national exchequei: .to the 47 . With regard to the concerned plots the record shows t,r:.]1.,,:ii^ that the original allottees were all untraceable and in effect were bogus. In this respect reliance is placed on the ,S. 16 I

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statements of Shabbir Hasan and Ambreen Arshad ;1r ::i ' 'l iIh e plots were all amenity plots and the petitione. wr3.rt,"j-tatq ?g!nt by profession and he would t^u. t ro*. ,rfi,*r"-;n '..'. .,, .1..,.,. "j",*

agents keep the original plars in their ofiices, ""il 'r :il{f,r'rsiit.,g ' i i would have known that there \^ras an absoluteip.ofribition, on their sale for residential or commercial purposes, He . also il tried to conceal his iilegality by advertising the property in a . t:

little known newspaper of very limited circrtlation instead of ri widely advertising the same. A1l this material ,in lo1rr view prima facie ful1y connects the petitioner to the commissidn of the olfense for which he has been charged and asl sr-E cti his petition for post arrest bail is dismissed.

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48.Learned counsel for petioner Muhammed submitted that he was completely innocent; that there,was nci material against him; that he ra,as a bona fide purcha:ser who had sold on 14 plots and as strch his pre arrest bail should be conlirnred.

49.The petitioner has been given a specific role at para 1;O which reads as under;

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"That the investigation revealed that the accused .No.20 namely Feroze alias Feroze Bangali (Private,. person / beneficiary) in connivance of with KDA officials ,got illegal transferred 14 plots (numbering R-3, R-4, R-5, R- 6, R-7, R-8, R-9, R-10, R-11, R-12, R-13, R-14, R-l5; R. 16 located at ST-13, B1ock16, Scheme 36, Karachi) in his name and lurther sold them to general public and caused loss to the national exchequer to the tune of Rs.

75,7OO,6741:".

50.The 5.161 statement of Jameel Ahmed Ba]och and Mohammed Saleem reveals the complete modus opereindi of , /-z

the scam and lully implicate the wis€ e

S. 1 6 1 statement of Zarrar Saleem. The estate agent by profession and was trrrrat .in lgtolrg.' v, ith the accused KDA officials in this'land scam. In twoii*t :j r'. '

agreements show that the land was sold torhim by bogrls persons and in both the agreements his signatur!; lislprps.nt which he has not denied and which matches wl h his signature on his vakalatnama; that he has not been. able :to produce any receipt for the funds which he allegedly pard for l the plots; being a broker he would known that theJ. were amenity piots which could not be sold on for residential or commercial purposes but he never the less did so to purchasers. As such in our view there is sufficietrt material on record to prima facie connect the petitioner with the olfense for which he has been charged and as such:his €td interim pre arrest bail is recalied with immediate effect. ,

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51.Learned counsel for petitioner Irfan Ahmed, like petitioner Mushtaq Ahmed was a beneficiary and,cl4jrned that only 2 plots had been allotted to him which he sbld on. Essentiall-y he was a bona fide purchaser,and was sailing in the same ltoat as petitioner Mushtaq Ahmed and'as such his pre a-rrest bail should be confirmed.

52.He has also been given a specific role in the reference at Para 13 of the relerence which reads as under:

"I3. That the investigation also revealed that the accused No.23 namely Irfan , Ah'med(private person / beneficiary) in connivance of with KDA officials managed 9 plots(numbering L.l; L-3, L, lv

s36 I L-lO, L-l1, L-12, located at ST 6, Block & L-1, L-50, L-51, located at'$T-41, Block,. x5, Scheme 36, Karachi) and furthei splf,,thpse p lots and cauSed loss to the n atronal' exghequer to' the tune of Rs.3B, I 86,375 / = . ,li i

trt According to hirn he rvas a bona fide pqfchaser'of, the 'l i' ': i plots and had paid 45 lacs for each plot, flevysyer whsn conliontecl he could show no receipt, no sale agreement:or

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any document of his purchase. Reliance is also placed ori the S.161 staten-rents of Asif Ali Memon, Zain U\ Abideen,And Muhammad Farooq to show lrfan Ahmed's involvemeht, ir,r .,1'.r:'i this scam. As such it is clear that he was give;r t[e ptots by KDA as part of the scam to sell them off to ,bona I fide purchasers at a profrt to be split betu,een himself and other official co-accused. NAB has shown us sufficient documents to prima facie connect him to the olfense for which he has been charged and as such his ad interim pre al'rest bail is recalled u'ith immediate effect.

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54.Learned counsel for petitioner Jahanzeb again was a i:

beneficiary and contended that he was a bona ifide'purchaser of 11 plots which he had paid 45 lacs for each: and,h4ditn-en ll sold them on. That there was no evidence agairrst hiin and that as such his pre arrest bail should be confirmecl.: i :.'. "

55.He has been given a specific role at Para 72 of the relerence rvhich reads as under;

*12. That the investigation also revealed thatl'the accused No.22 namely Jahanzaib (private person '/ beneficiary) in connivance of with KDA officials managed fake liles of llplots (numbering R.7, R-13, R-28, R-34, R-43, R-44, ST-11, Block 15 L-7,L-B,L-18, located at ST-4 1, Block 15, R-1, R-6, ST-3, :Block 14,

.i : I-]_- Scheme 36, Karachi)and further sold thoselpiots and caused loss to the national exchequer to the tune of Rs. s2,o32,510 I =.

56.In our vierv he is sai[ng in the same boat as,petitiongr Irfar-t Ahmed and the saine consiclerations appl).ro nimi S 16,1 statements of Muhammed Iqbal Hussain ..rA lUllf,in,rn"a Nadeem Qazi show that they were the bona fide purghasers who paid Jahanzaib for the lree plots wtricfr n'e *.* iti.grtty grven in connivance with officials of the KDA. NAB hps ,shoiwn . I .:. j us sufficient documents to prima facie connect him to thb offense for which he has been charged and as suchlihis,ad interim pre arrest bail is recailed with immediatb effectr 57 . Learned counsel for petitioner Gul Hassan, : Zaidi submitted that he is completely innocent; that the .only material against him is a S. 161 statement by, . anbther r i

Muhammad Saleem whereby he alleges :thatr ,MrrZaidi ,t' transferred 7 plots into his children,s name and thuS hi:S pre arrest bail should be confirmed as it is a case of ..furthei i 1nqulry.

58.The petitioner has been given a specilic role,at fiara 1f "That the investigation also revealed that the accused No. 21 namely Syed Gul Hassan Zaidi managed (private person/ beneficiary) in connivance with KDA officials managed fake files of 7 plots (numbering L-39, L-4O, L-41, L-43, L-44, L-45, ST-41, located aL. B1ock15, Scheme 36, Karachi), and further sold those plots'arrd caused loss to the narional exchequer to the tune of Rs. 2s,9s6,OOOl-" : '

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59.We are of the vierv that the S.161 statement i, of Mr.Muhammad Saleem rs not very convincrn$ and does riot appeal to reason and that it has not been corroborated by any other piece of evidence. It rs also in our view relevan, ,nr, ,na petitioner is a doctor by profession and is not an estate agent ti or a broker so we find it drlficult to see how he could have managed the sale/transfer of as many as 7 plots, in the manner menttoned rn the aforesaid S. 161 statement Thus, in our vlew thrs is a case of further inquiry and the adr interim pre arrest bail granted to the petitioner Gui Hassan Zaidj is confirmed on the same terms and conditions. j

60.Summary.

Post arrest bail is dismissed with res pect to:

1.Syed Nasir Hussain Razmi

2.Mushtaq Iqbal

3.Mohammed ]dress

Ad Interim Pre arrest bail is confirmed on the same terms and conditions to:

1 Gul Hassan Zaidi Ad interim Pre arrest bail is recalled with immediate effect in respect of:

1.S1,s6 AtilHussarn Naqvi,

2.Rasheed Ah Khan,

3.Irfan Khan YousulZar

4.S1,ed Rizwan Ahmed,

5.Muhammed Kamran Warsr,

6.Akhter Rasheed

7.Khr,rda Bux B. S arfaraz Ahmed 9 Muhammad Hanif Ali Khan 10 Muhammed Jumman i l.Jahanzarb Iqbal l2.Sagheer Ahmed 13.Shaikh Fareed i4.Muhammed Feroze 15.lrfan Ahmed,

16.Jahanzeb s/o Jahangir.

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61.These are the reasons for our short order dated 21_12_ 2017 which reads as urider:

"A11 the learned counsel for the respective and learned Special prosecutor, f,lag, a'"sist.d parties have concluded their arguments. For reasons lO .""j9:9^.^.yatetJ,, to be I .Con si. petrtions N o s.O SAZ Z I ZO t Z, i;;1.,:/^:'_'., r:!8/2gl7-, 6os2 / 20t6, 3320 / 2017", ."i::/,:y: ^::911?916, rsua/2017, :. 3670/2017, 34rB /2017, 3468/2ot7, 4984 /2017 are dismrssed and ad-int..i.n p.._*.est barl q:TtiiC^ - 9.d"1": passed in Const. petitions Nos.D_ :1::/ :X:2, 2yg1t?916, 6os2/2016, s32o/2017, s33B/20-17, s418/2017, 3468/2017', :::!/.<or/, 35OB/2017, 4862/2OtZ, 4gB4 whereas Const. petition No l20i7 ,." h.."U, recalted D_330S/201i ;;;;;

allowed and the order dated 18.5.2017, whereby Syed Gul Hassan Zaidi son of Syed Sardar 'llussaln Zardr, petrtioner in Const. Petitron -__ D_3305/2017 was h_ granted ad-interrm pre-arrest bail is confirmed on same terms and conditions.,,

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CHIEF U STICE.

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