Ali Ahmed Lund (Petitioner) VS The State Through NAB and Ors (Respondent)

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iiN TT"IE JTfl[GEfl COTJSET'OF'STIVDE{ JTT" ]I'iILRACEIT Before Mr. Justice Atrmed Ali ivl' Shaikh CJ i Mr. Justice Mohammed Karim l(han Agha

Vs.

The State and another

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Da-te of hearing rDo4-2017

i-l,a lc of Order L4-04-2017

Pecitioner Throu Dr F a I o h N a e e m Ad v o C a te Resl:onder-rts Through Muharnma d Aitaf, Special Prosecutor NAB

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il/Irrrfu*tr.**U *a ricm Khan Ag ha" J. B y this order we Propose to disPose ,.,t the petitioner's(Mr. Ahmed Ali Lund's) petition for post arrest bail arising out of NAB Referetce 47 of 2015' a ). Eariier the petitioner had applied for pre arrest bail which was was upheld clisrnissed by this court vide order dated 13-05-2OL6 which ny the Hon'ble Supreme Court vide order dated 03-10-2016' The brief facts of the case as per NAB referenie4T of 2O15 are tirat

Ex-secretary oir receipt of a complaint against petitioner Ali Ahmed Lund of Local Government, Government of Sindh regarding accurnulation by eissets beyond known sources of income, an inquiry was authorized i\AB vrhich was subsequently converted into an investigation on joined 0,7.05.2015. The investigation report reveals that the petitionel service on 18.10.1984 as Assistant Controller (eeS-t'f) i" government retired from r the Department of Commerce and Trad'e (C&T) Group and lire government service on Ol'O4'2Ol/+ in BPS-20' The' petitioner including rernained posted on various important posts during his servic'e (TDAP) and Director Geueral Trade Development Authority of Pakistan Secretarlr Local Government, Government of Sindh' The investigatiorl tlrat the petitio,er received Rs' 9,946'747 l- as salary for the 'eveals enti]:eperiodofhisservicei.e.lg84to2ot4.TheinvestigationlurtLler Ahtned owned 2il8 r:e.reals that the petitioner ancl his son namely Zaheet .lci.esanci0lghuntaofagriculturallanrlinTalukaBulriShahl(arim, L-istrictTandoMuhammadKlran.ourtoftot'al288acresand.01ghunta,

6ls ii-re petitioner inherited 180 acres and, 37 ghuntas agricultural land in Deh Sherani and 107 acres and 04 ghuntas were purchased by the i:ttitioner in the years 1994, 2005 and,2OO7. The investigation reveals fliat tlrc petitioner received an alnount of Rs. g,75L,631 1- as rlet income ger-ierated from the total agricultural land of 288 acres and O1 ghunta. 'lhe investigation further reveals that the petitioner also owns petrol pump namely Baloch Petroleum Service as attorney of his deceased rr.other (Mst. Begi) in Bulri Shah Karim. The income generated through ihis petrol pump from the year 200 1 to 2015 amounts to Rs.6,028,2281- .t'lr.e total income of the petitioner from all sollrces is calculAted to be -.'j:25J26,606/-. The investigation further reveals that the ;petitioner niaintained and operated 13 accounts in various banks in his and name of Jris son Zaheer Ahmed. The total deposits in a-ll 13 accounts amounts t,

iu Rc.399,068,577 l-.

tI. ;:lissets h,eyond Xru.own souroes of the ineqrne of the petitioncr:

*)1-. +I Particulars Amount l.n Pak Ru ees Assets"

1)Assets in form of credits/deposits in all 399,068,577 banks accounts.

ii)Cost of agricultural Land purchased 2,93O,O0O clu.ring ser-vice. This is not inciuded in the calcula-tion of total assets held i acquired by the petitioner on the presumption that the said land was purchased from the amount de osited in the bank accounls Total assets held/acquired by the 399,068,577 etrboner 1t Kraown $otlrees of nmcome of, inflows.

il Salary Income (according to the record 3,962,087 , provided by AGPR sub-office I(arachi, AG Sindil and District Accounts Office, FI derabad

ii)Salary income for the period rvhich has 5,984,660 been caicuiated on average basis with 10%o increment every year because the record for that period has neither been I pro-zided by AGPRs or AG Sindh & DAO H derabad I

i ii) Agriculturerl Income from inherited land 4,298,865 irr'l Agricultural Income from Purchased land 5,452,766 rr) Income from M/s Baloch Petroleum 6,O28,228 Service .ri) Loan obtained from ABL SASM Branch 4,5O0,000 trii) h-r,ter-account transfer of funds from 13,725,OOO accottnt no.01-2OO-34aT -6 maintained at /\BL SASM Branch to account no'Ol- 1670003-6 maintained bv the petitioner

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l\li Ahmed in the same branc h. 'I'his is cleducted to avoid duplication of deposits in the accounts ,iiiil Inter-account transfer of funds from 3,000,000 accotrnt no.01-2OO-0456-7 maintained at ABL SASM Branch to account nos'01- 167-0003-6 & 0 1- 162-OOO1-9 maintained by the petitioner Ali Ahmed in the same + bianch.- This is deducted to avoid du iication of de o sits in the accounts i;i.) Transaction dated 06.ll.2Ol2 w hich was 10,ooo,00o initially withdravzn through pay order bearing lno.1649043 dated 04'O9 '2012 from the account of M/s Baloch Traders against 4x cheques bearing no'099029 1O to 09902913 but later on the same was deposited back in the account' This is dehucted to avoid duplication of deposits in the account

i)10% \Mithhoiding Tax (WH T) which is 2,127,335 deducted at source from the account on the profits earned on the deposits in bank accounts Rs.2 i 2t3, 350x 10% 7,i) Credits which were subsequent ly reversed 609,169 i Rerrerse Cr edit Entries in all accounts rrri) Proportion of Total Profit earned on 1,563,662 r-rstified de osits Sum of all sources of income and 61,245,762 deductions [Tm.jnstified Deposits / Credits in alX 337,822,87 t_ loami.s accouuts -t-

S. The investigation further reveals that the petitioner has hepositecl ajr Lr.molr-nt of Rs. 337,822,815/- in the bank accounts disproportionate i.c l:is known source of income from thq yeat I9B4 to 2Ol4' which he :or-r.id not reasonably account for. Thus the petitiorrer has committed the

o1.fuirce of corruption and corrupt practices as envisaged in Seption 9(a)

l,z) oi the I{AO, 1999 and schedule thereto punishabie under Section 10 ,-'f Lkrc said Ordinance.-As such a reference was filed against him by NAB on 2,Tth November 2015 before the Administrative Judge Accoirntability lor-r.i|s Sindh Karacht.

i--,. I-earned counsel for the petitioner took the court th ug h 1-O i:iu.irre;rous clocuments which formed a part of his post arrest bail was a.pltlication and submitted that since his pre arrest bail application ,4ismissecl Court new material and facts had arisdn which by this justified the petitioner being enlarged on post arrest bail. He firstly submitted that his salary had been completely miscalculated to the i:zltent of 92 lacs, that he had received much more income from his

a;g't'icu-ltural property than the NAB had given him credit for and that the 1: lfrl siaiemenr of Mr-. .lrinaicl Ha-mmed Samo Assistant COrnnrissioner

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been rglied upon -::ulri Shah, District Tando Mohammed Khan which had ii1 the earlier order of this court declining pre arrest bail to the, petitioner iiacl norr been contradicted in his cross examination, that the NAB had deiiberatety suppressed approximately 25 years of his agricultural tl"e i:r-rcoi]1e when filing the reference, that according to his calcu\ations itlAB had exaggerated the income from his petrol pump by 4 lacs and { Lha.t the NAB had totaily failed to consider the investments which he hacl

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i.nade in offices which had been allotted to him and as such had his ;a-lar1r, agriculturai income, income from the petrol pump and his ini,estments in the office property been considered by NAB it Vrould have

i--ecome obvious that he had not acquired assets beyond lris known sources of income. He submitted that it was a case of further i4quiry that ,-s the ca-se .,l/as largely based on documentary evidence thei petitioner ,",ould not be able to interfere with it, the petitioner had already spent 6 months behind bars and was even prepared to deposit 18 cores as surety ::iith the NAB until the outcome of the trial and for all the aboVe reasons i-re rl,as entitled to be enlarged on post arrest baii :

','. Learned counsel in support of his contentions placed qeliance on "-i:l-cq .frlnr:nccX \I T'he State (1996 SCMR ll32\, Brig' (R! Imtiaz Ahmed ':i ',:i'Xr.c ista{:e (PLD 2Ol7 Lah 23), Ghani-ur'R'ehman 1I Natisnal ,l,ct:c',u.ratabinity tsureau and others (PLD SC 2011 1144), Khalid Aziz V 'rL'ir,e Eli:atr:'.e (2011 SCMR 136), Fir Mazharul Haq and others V;The State ,ii,ii'.r,,*gi.t Chief trhtesab Commissioner, Islarnabad (PLD 2005 SC 63)' i-\.;,,edl. {lla,siffix SXaant V Ttre State (2009 SCMR 790) and an unreported ord.er of this Court dated 07-1I-2OL4 in CP D 343912014 lt4uhammad :lcrrllinre.s lllarirad V DG NAts

has li. On the other hand, learned Special Prosecutor NAB vetremently opposed the submissions raised by the learned counsel for lhe petitioner and submitted that NAB has uncovered more than enough irraterialto prove beyond a reasonable doubt that the petitioner has of -l committed the offeuse of possessing assets beyond his knowni sources iircoi:le and have illustrated the same with the chart showing the income aud was of the petitioner and his assets which is a part of the referenbe for ieproduced above where due credit had been given to the peltitioner Lric salary, agricultural income, income from petrol pump etc and has al so relied on additional S. 16 1 statements to refute the ,petitioners hacl arguments and in particula'r: the investments from the officesivil.Iit:h ,-rever before been mentioned by the petitioner prior to the lilir:rg of thr:

:r:fei:ence which according to NAB were manipulated and Lrog-u':'

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appiied for and wanted to enter into a voluntary return witlrr NAB which was rejected and as such the petition for post arrest baiil should be dismissed.

9.lA/e have considered the subrrrissions raised by the learned coullsel for the parties, perused the record and case law citcd by them at the bar.

iC. As per settled law we have only made a tentative assessment of the maLterial placed before us in making this order, which shall not prejudice the case of either partSr at trial, which shall be decided on merits based on lhe evicl-ence by the trial court. .

i 1. At the outset, we would like to make it clear that in our view the case 1aw relied on by the petitioner is of little, if any, assishnbe to him as it is in our view, distinguishable from the particulan facts and l

circumstances of the instant case. For example, this case is not solely basecl on documents as there are also 18 PWs, even if :the incorne statements and wealth statements of the petitioner were igndred ttrere is still sufficient material on record against him etc.

i2. This Court whilst rejecting the petitioners pre arrest bail petitiol i,ic-le orcler dated 13-05-2016 which was upheld by the Hon"ble Suprerne Ccrurt ..,ide order dated 03-i0-2016 also considered the meritq of the case ared. for ease of reference and in order to avoid duplication those findings are set out below.

"L2. In the case of }fiuharnmad [Iashim Eabar V State (2OlO SCMR 1697) tLre Ilon'ble Supreme Court bet out the ingredients of what were required to prove an assets beyond known sources of income case under S.9(a) (v) NAO as under at P.7704:

"It is pertinent to mention here that in order to prove the case is the duty and obligation of the prosect'rtiqn to prove the ingredients of the offence which are as follows:-

(i)It must estabiish that the petitioner was holder of a public office. :

(iil The nature and extent of the pecuniary resources of property which were found in his possession.

(iii)It must be proved as to .,vhat were his linov,'ri source of income. :

(iv)It must prove, quite objecti,rely, [hat sur:ii resources or property found in possessiot: of tirc petitioner were disproportiona,te to l:is 1111i.'r.1,11

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The aforesaid ingredients are proved then the offence as defined under section 9(a) (v) is complete, unless the petitioner is able to account for such resources or property. It is also settled proposition of law that mere possession of any pecuniary resources or property is by itself not an offence, but failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence meaning thereby that if an petitioner cannot explain, presumption under section 18(c) of the Ordinance that petitioner is guilty of corruption and corrupt practices is required to be drawn."

13.In the later case of Ghanl Rehman V NAB (PLD 2011 SC 1144) not only did the Hon'ble Supreme Court endorse the linding in Hashim Babar's case (Supra) but it also emphasized the need to carry out a thorough and meticulous exercise of investigating what were the actual sources of income of the petitioner and weighing this carefully against the assets which he had acquired in the following terms at P.tt47.

"We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance. It has been argued by the learned { counsel for the appellant that during the investigation of this case the sources of income of the appellant had never been determined and his income had never been quantified, the Reference filed and the Charge frarned against the appellant were absolutely silent about the income or the sources of income of the appellant and even during the trial no evidence whatsoever had been led by the prosecution in t-leat regard. In these circumstances, according to him, it was not possible for the learned trial court to compare the value of the assets and pecuniary resources of the appellant, his dependents or the so-called benamidqrs with the appellant's income and to hold that the value of the assets in issue was disproportionate to the appellant's income. It has also been pointed out by him in this regard that Qazi Abdul Hameed, Inspector FIA (P.W.18), the investigation officer of this case, had stated before the learned trial court in so many words that the appellant had informed him about many different \ sources of his income but he, the investigation officer, had not brought that information on the record of investigation and that information supplied by the appellant."

14.We have examined the chart produced by NAB showing the income of the petitioner and his assets and its supporting material and compared it with the material produced by the petitioner to show that his assets are not disproportionate to his known sources of income. rl/>

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15.i{o doubt the petitioner is an agriculturist Iiom which he earns income, he received a monthly salary and aiso i'eceived profits from a petrol pump. However it is to be observed that all these aspects have been taken in'to account

16.His assets declarations whilst in Government service rerreal that he only owned 15 acres of land (5 of ruhich were in his lvife's name) and there is no mention of any petrol pump or other businesses or subsequent purchasbs of land. Vr'ith regard to his alleged income from agricultural land this appears to have been massively inflated when compared with llee figures provided by the Assistant Commissiondr from the area where the land is iocated. With regard to banh accounts the petitioner has 13 such accounts of which 6 ol them arc i:usiness accounts. He has not been able to shtisfactorj explain the income and massive transactions which have florared to and from these accounts. Initially he disowned these accounts and claimed that the accounts bilonged to other people who were concerned in the afuricultural brrsiness (Rob Nawaz Yls Nadir Hu-ssain, Irshacl F{ussain Lund V/s Syed Mudassar Ali Rizvi, Muhammad Usman, Ali Ciul V/s Imran Ahmed and Niaz Hussain V/s Shafquat Hussain and he was only nominated to be guarantor and to supervise the sales and deposits in these accounls by the persons mentioned above. In support of Jris contention he produced copies of such agreements. It appears ttrat on call up notice only Shafquat Hussain appeared who denied the agreement and stated that he was only involved in a small furniture repair business and provided a S.161 Statement to this effect. Of the others named above it w-as found that 2 oirly had a ferv acres of uncultivated land whilst tlie other 3 had no land in the record of rights. Later on it appears that the petitioner cleanged his story and cJ.aimed tl"rat the money in these accounts came from his agricultural irroome. The amount of his agricultural income as a-ssessed by IIAB is based on a report of the concerned Mukhtiarkar and Supervising tapedar whic!:i urere prepared uhder the supervision of h{r. Junaid l-Iamrned Samo lAssistanl Commissioner Bulri Shah, District Tando Motrarnmed Ithalr rvho has aiso recorried his S.161 Statement. The,repori t,i-

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P. 103 to 108 shows that the agricultural incorne of the petitioner is far less than he has claimed and could not have accounted for the transactions in his business accounts'

17.It is also observed by order sheets dated 22-7-2015 and 17-08-2015 that the petitioner had approached the NAB for VR option which according to order sheet dated 17-11-15 i was declined bY NAB

18.In our view the analysis of the income an{ assets of the petitioner by the NAB has been correctly investigated and tabulated as required in the cases of Muharnrrad Hashirr (Supra) ancl Gtre.ni Rehman (Supra) and there 4re in our consideredviewreasonablegroundstoconnectthelpetitioner tc the offense as charged and as such the order dated 25-3- 2015 granting the petitioner ad interim pre arrest bail is hereby recalled and the petition stands dismissed'"'

13.Lrlou, turning to the ner'v information which has allegeclly arisen i

Sil'lCe the rejection of the petitioner's pre arrest bail application which '.-li:o as rnentioned above dealt with the merits of the case { I rl .Erirstly u,e would observe that the issue of his miscaliulation of oalarry is not a ne'vl/ issue but never the less the S' 161 StaLements of

'3yec1 l\azim Ali, Assista.nt Accounts officer GA IV AGPR, Mr' Parvez Ali [ia:rgi, Assistant Accounts officer, Districl Accounts office Hydefabad and I\/ir:.Asii Aziz Qureshi Accounts officer Monitoring and evaluation officer .e.G Sinclh Office all tend to suggest that the NAB's calculations vis a vis tl.re petitioner,s total amount of salary received whilst in Government se-rrrice are coriect. Secondly, the allegation of a 4 iacs discrepancy in

the income of the petrol pump which again is not a new issue is in our view not hugely significant as the discrepancy is extremely minor when cotrpared to the massive amount of assets which the petitioner has -tr allegeclly acquired beyond his known sources of income' Even'otherwise i.he S.16i Statement of Mr' \4anzoor Ahmed Mangi Ivlanbger PSO by the I-{yderabad division supports NAB's calculations of the profit made is not a new i:etrol pump. Thirdly, again with agricultural income this (a's opposed issue and we ar.e of the view that on a tentative assessment to a. deeper appreciation of the materiai on record which is rtot permitted Assistant ar the bail stage) of the evidence of Mr' Jurnaid Hammed Samo; .]onrmissionerBulriShah,DistrictTand.oMohammed.Khanincludinghis the {rross examination does not, in our view, seem to seriously damage VJ:',

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;rrosecution's case especialry when all the other material o, record rr,gainst the petitioner is read iie totality and viewed in a Lrolistic manner.

i 5- Fifthly, we arso observe that the petitioner has stilr not been able to :-rciequately explain the large transactions which have taken place 1-ir.oi-rghout l-ris 13 ba,k accounts which was highlighted by the earrier { or-d'er of this court dismissing the petitioner,s pre arrest bail. The s.16r J'lai-etne'ts oi Mr' Mohammed Arif, Branch service manager Allied bank, i-ir'ti' ,-Iarred Akhtar Branch operations manager l,trBp and Imran Hussain Fa.rrhu'a' AVP NBp, Abdulrah Fateh Khilji AVp NBp, Mr Ami, Aranr ilrl:'eia-tions manger HBL are significant in this respect arong with

I -'' It is also in our view significant that the petitioner had ;agreed to ':;tier- inlo a volLrnlqry return with NAB which NAB rejected. iThis fact c'rav irot on ito own amount to guilt or lead to the denial of bail 6ut in our vis'i"' it rnust be weighed along with all the other relevant factors. The Ir.iccl important question which of course springs to mind wheri such an 'rire:.'is ma-de is rarhy wourd arr irrnocent man agree to return any money if .li' ',va-s his hard earired money?

{ i-/ T'he only realry new issue raised by the petitioner :

appears: to us to bc ihe contention that the NAB hacl not taken into consicleratibn in its r.ic.,t-r'L31ie,-, of the petitioners assets ancr income (as can be seen frorn r:l"r'E'e assets and riabiliff sheet reproduced earlier in this order) the h,ge i:--r"'eltments which the petitioner had a[egedry made in office property "''liicl-l lvas to be constructed by Task Builders. According to trris new :outention the petitioner had purchased office property in Task tsuilders 'l'iircle Arzenue project on I.I chundrigar Road which had failed to :'r;'rLcrialize anci pursuant to compraints to the KBCA on 20-05-2005, i"-'ira-i iroiices in 2016 and negotiations with rask Builders he was repaid i.r't; 'i'4"1- Builders the vast amou,t of money which he had invested in the i-ic'ir:ct which if taken into account would show { that the petitio,er could.

r{iccr-rirt Jbr all his assets and as such there was no case against him.

'i3' In our view we find it quite incredible that such an important and ,'i:iieiiica*L piece of material explaining his income was not given:by the 1-rr:i-tti'--ner to the I{AB whe. his statement was taken especiaily- si,ce lre:'; his complaint was given to the KBCA on '' 2o-ol-2005 this was lcireg r'':;"'ir the i,quir5,, later investigation was initiated against him by NAB t':l a.Joire before the reference lvas filed against him by IriAB. No -:r;.1:lr'ration has been given by the petitioner as to why he kept; rrrurn

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to observe that .r,iorlt tt.iis most important of issues' It is also interesting to him: by Task nll ti-ie legai notices and alieged payment was made him' In our view Euilders af;&er the reference had been filed against to be an afterthought,blsed on 1:rima, facie this new material appears .ior:gedandmanufactureddocumentsinordertoenablethepetitionr:rto We are fortified in our escape [i-om any culpability under the reference' .rie.a, by the S.161 statement of Mr' Mohammed Iqbal who has confirmed

cornplaint was received that as per office complaint cell of SBCA no such irom. the petitioner, the 3'161 staternents of Chaudhry Nabil:Rauf and i\rloh.ammed Munaf both of wtrom were partners in Task Builders involved on I'I' Chundrigar Road both irr the constrr;ction of Tra'de Avenue project ever booked by the petitioner in ttre t--l *rhom confirm that no space was Shah who bookeci ;rlbresaid project and the S'161 statement of Gulzar which allregedly the ilre whole lOth Floor in the Trade Avenue builcling we are of the petltioner booked' Thus, based on the above material' in respect of the booking ancl pre f,iima I'acie view that the new material p.a-icl office space by the petitioner which rvas refunded to' him is a petitioner has not come to na.nufactured story and alsci shows that the [lrisCourtirritsconstitutionaljurisdictionwithcleanhandsairdtlruson i,l.riscountalonewewouldbejustifiedindismissinghispetitionforpost { alrest bail

1 q. 'ihe tentative assessment of the material available on rc-cord lead ustot]reconclusionthatthereisstillsufficientmaterialtoconnect|he aird su-ch his petil-ioner to the offense for which he has been charged 1s clismissed" Howevei' we direct ttre trial court ;rr:titir:n for post arrest baii is this order trl' 11ot- to complete the trial within 3 months of the clate of which in our view is allowing any adjournment on any flimsy ground arrd it seems tLial 7 out of manageable since there is oniy one accr-lsed 1.1-relBPW'shavealreadybeenexaminecl'Theofficeshallforwardacopy Accountabiiity Court hearing of this order to DG NAB (Karachi) and the hereinabove are this relerence for compliance' Observations made +- (.entative in nature which shall neither prejtidice the cas': of either party cleciding the martteri at trial nor influence the trial Court rvhiie

20.These are the reasons for our short order dated 'lO-O4-2Ol+ was dismissed by this couri' whereby the petitioner's post arrest bail

.JUD

i .t- CHIE ic,tr -Ifated: L4-4-2O77