Estate company of Zardari, Bilawal: Retired officials get bail from IHC one month after arrest

ISLAMABAD: A senior retired bureaucrat and an-ex revenue official have turned out to be lucky detainees of the National Accountability Bureau (NAB) having got bail just one month after their arrest in a case involving the aborted transfer of a piece of land to a company owned by Asif Ali Zardari and his son Bilawal Bhutto Zardari. The Islamabad High Court (IHC) has granted post-arrest bail to former members of the Capital Development Authority (CDA) (2010 to 2012) and ex-interior secretary Mian Waheeduddin and former deputy Tehsildar Malik Iqbal.

They were taken into custody by NAB on June 12 and were given bail on July 14 by a two-member bench headed by Justice Mohsin Akhtar Kayani and comprising Justice Babar Sattar. The judgment has gone unnoticed, unreported.

The accused faced investigations for allegedly wrongly demarcating and transferring over 118 kanals of forest land, situated in Sangjani, to the Park Lane Estate Company (Pvt.) Ltd. The demarcation had been overturned by a CDA judicial forum prior to the initiation of the NAB inquiry and consequently no transfer of land had taken place. The total land of the company is 2,460 kanals & 17 marlas.

As per the details of the case noted in the judgment, authored by Justice Kayani, NAB had received a pseudonymous application from a person whose credentials have not been verified by the NAB authorities. It was against 118 kanals & 14 marlas of the Punjab Forest Department, which was allegedly transferred by the CDA Environment Directorate in connivance with revenue staff of the Islamabad Capital Territory (ICT) through the Park Lane Estate Company (Pvt.) Ltd., which was under lease with the CDA.

As per the allegations, the land was transferred on the basis of the post revenue record, whereby Malik Iqbal was accused of forging the revenue record and then conducting demarcation on its basis. Similarly, Mian Waheeduddin as the environment member, without consulting the original owner -- the Punjab Forest Department - -handed over possession of this land to Park Lane. In order to save his skin, he had removed the approval page from the original noting file. As such, he knowingly and with malafide intention deliberately ignored the report of its own Environment Wing Range Officer and Deputy Director (Forest) CDA, wherein it was clearly stated that the land belongs to the Punjab Forest Department and is under possession of the CDA as lessee. The demarcation of the disputed land was conducted in the year 2011. But the accused in collusion with other accused persons with malafide intention, and after negating the stance of the Environment Wing, allegedly recommended the handing over of possession of the land and took out the original approval page having the recommendations. In order to hide their crime, he sent the file to the CDA legal wing by taking a completely different stance from the previous recommendation. As such, Waheeduddin, by misusing his authority, extended undue favour to his co-accused persons, it was alleged.

The judgment said an astonishing fact surfaced on record that the demarcation report, which is the subject and basis of the current NAB investigation, has been set aside by the Additional Deputy Commissioner Revenue/District Collector, ICT, on Nov 25, 2014 in an appeal preferred against the demarcation proceedings. It reveals that the Punjab government, being the owners of the Margalla Hills forest, has not been called in the demarcation proceedings, whereas the CDA being the lessee cannot grant permission for the demarcation of the land without the authority and permission of the Punjab government. Even otherwise, necessary parties have not been implemented. As a result, demarcation proceedings have been set aside through the judicial order. This aspect has also been confirmed from the record and even acknowledged by the NAB investigating officer (IO) before the IHC.

The bench said it then went through the second allegation against Mian Waheeduddin, who allegedly tampered with his first view in which he only concluded on the basis of the demarcation report that “suitable order may please be passed for execution of demarcation carried out by revenue staff of ICT”. If this order is believed in toto, even then there is no illegality in it, though it is an admitted position that he had not obtained legal opinion while passing this order, But, at this stage, can the bench presume that this order exists on record, which is only a photocopy available to the NAB authorities? The IO acknowledged before the IHC that this order has been torn off from the record of the environment directorate and has been replaced with the second order of the same date in which Mian Waheeduddin has referred the matter to the legal adviser for opinion and to contest the demarcation in a relevant court or otherwise. Consequent to these orders of the same date, an appeal was filed before the revenue authorities of ICT, whereby the demarcation proceedings were set aside. Hence any action brought on record, though not conclusive and finalized, has already been dismissed prior to the initiation of an inquiry by the NAB authorities.

According to the judgment, as per the record and the IO’s confirmation, NAB received a pseudonymous application and initiated the inquiry in the year 2015, which was converted into investigation on June 8, 2018, whereby the accused were taken into custody on the basis of a warrant of arrest, dated May 25, 2021, for allegedly misusing their authority. This despite the fact that every record/document is in the possession of the IO and there is no lawful justification for the arrest as the intention of the accused to commit any offence of misuse of authority could only be settled in the learned trial court after recording of evidence, that too if the reference is allowed by the NAB chairman with a legal reason.

The IHC said it confronted the IO as to whether the accused have gained any benefit for themselves by misusing their authority, to which he answered in the negative. The NAB special prosecutor and the IO confined their case to the extent of a simple misuse of authority as alleged in their record. “This aspect leads to the prima facie conclusion that at this stage there is no alleged criminality on record based on the available documentary evidence, especially when a judicial forum has set aside the demarcation report and the legal effect demolishes the entire superstructure of the very basis of pseudonymous application but, surprisingly, the NAB authorities have not considered the judicial verdict of the revenue hierarchy before proceeding further knowing this fact that there is no complainant and even the land is still in the CDA’s possession and not an inch of it is encroached upon,” the verdict stated.

“In such a scenario, we are not convinced that the very initiation of the entire inquiry and investigation is based upon a bona fide claim. The element of corruption and corrupt practices is not visible on record nor any extraneous consideration or incriminating material have been brought on record to justify the misuse of authority…” the judgment said.

It said the principles settled by the Supreme Court in its famous rulings relating to the ingredients of misuse of authority as well as of corruption and corrupt practices are missing in this case. In this backdrop, the bench said, it is mindful of the fact that no useful purpose would be achieved by placing the accused behind bars. As such, the NAB authorities have not highlighted anything before the IHC that in case bail is granted, the available record might be tampered or interfered with by the accused in any manner, especially when the object of criminal trial is to make the accused face the trial and not to punish an under-trial prisoner for offence alleged against him. The basic idea is to enable the accused person to answer the prosecution case, rather than to drag him behind bars, the judgment said.