36-year-old land allotment case: Jang-Geo Editor-in-Chief Mir Shakil-ur-Rahman honourably acquitted in NAB case

LAHORE: An Accountability Court on Monday acquitted Jang-Geo Group Editor-in-Chief Mir Shakil-ur-Rahman and others in a 36-year-old private property case as the National Accountability Bureau (NAB) failed to prove any of the charges of violation of laws, corrupt practices and loss to national exchequer.

The Accountability Court judge, Asad Ali, while announcing the 20-page judgment on Monday, remarked that "not even an iota of evidence regarding abetting any offence by Mir Shakil-ur-Rahman is available on the record."

The judge held that no evidence of corrupt practices or misuse of authority was proved by the prosecution against the accused. The order said that no allegation regarding any illegal gain by anyone or any loss to the national exchequer has been proved. The court, while giving reference of different precedents, said that there was no criminal offense committed by MSR and others. The court order stated that "the prosecution case lies on presumption and assumption."

The court said that the NAB failed to bring any incriminating material/evidence on record to establish dishonest intention on the part of the LDA officials Humayon Faiz and Mian Bashir in forwarding summaries to the DG LDA for approval. It has not been alleged that either of the accused themselves gained any pecuniary benefit or illegal gains by any means whatsoever. The court acquitted Mir Shakil-ur-Rahman on merits without taking benefit of recent 2nd and 3rd amendments in the National Accountability Ordinance (NAO) 1999.

The order mentioned that the property in question was purchased in 1986 while administrative approval of Johar Town, Phase 2, was given in 1989, and the master plan was approved in 1990. The court, in its order, stated that Mir Shakil-ur-Rahman was allotted/exempted plots in the year 1986 and for the excess land, the LDA directed MSR to deposit price of excess land on reserve price, which the petitioner Mir Shakil-ur-Rahman deposited accordingly. The court elaborated that no authority at any stage, raised objection that the petitioner MSR was required to pay the price of excess land at market rate but he paid the same at reserve price. Although, a letter dated 29.10.1992 is available on record which was written by Qaiser Amin-ud-Din, ex-Director LDA, to the wife of petitioner Shakil-ur-Rahman wherein they were required to pay the price of excess land at market price but said letter was written after pronouncement of policy dated 20.06.1990, the court order read. The court stated that the said policy did not have retrospective effect and was enforceable for the future cases only. The court categorically said that the letter dated 29.09.1992 had no legal sanctity in the eyes of law. The order read that "when the policy letter dated 26.09.1990 was applicable for the future cases, how petitioner could have been asked to pay the price of excess land, which he had already paid in year 1986 as per then SOPs, in accordance with policy order dated 26.09.1990."

Talking about the letter written to the wife of MSR, the court again said that "the letter dated 29.09.1992 was issued in sheer violation of principles of natural justice."

The court order stated that nothing is outstanding against MSR regarding his exempted plots and this fact also finds support from subsequent events. The court elaborated that whenever any allottee/owner of land applies to LDA for issuance of No Recovery Certificate (NRC), the authority issues the NRC after verification of payments of all dues, if any. The petitioner, Mir Shakil-ur-Rahman, applied for NRC on quite a few occasions, not even a single time, but the NRC was declined to the petitioner on account of pendency of outstanding dues against him, the court order read.

The court said that it is on record dated March 9, 2016, a report was sought as to the challan of excess area and any other recoverable charges against the petitioner. It is correct that as per the record in the year 2016, after credit verification of amounts and any dues recoverable, recovery certificate (NRC) and final recovery certificate (FNC) was issued by the competent authority and after verification of all payments, the case was approved for execution for Transfer Deed. The court further cleared that as per record from year 2016 onward, nothing was outstanding against the Exemptee/Transferee, which was also confirmed by the prosecution witnesses.

The court stated that if it is presumed true that accused persons Humayon Faiz Rasul, ex-DG LDA, and Mian Bashir Ahmed, ex-director Land Development, LDA, or any other official of LDA gave concession or favor to the petitioner Mir Shakil-ur-Rahman, then why any action was not taken by the department against them. Both officials were never proceeded against by their department during their service. The court questioned that if the price of excess land has not been paid by petitioner MSR at the market price since 1986 till to-date and no subsequent DGs and DLDs of LDA ever wrote a letter to the petitioner, then this means all subsequent DGs and DLDs who replaced Humayon and Mian Bashir are also liable to be proceeded by the LDA or NAB.

The court categorically said that "this is case of discrimination against the former LDA officials Humayon Faiz Rasul and Mian Bashir, which is not warranted by the law."

The court held in clear words that "no loss was caused to the LDA from any act of petitioner Mir Shakil-Ur-Rahman and other nominated persons." The judgment read that "Assistant Director DLD Lahore Rai Mehmood Hussain in very clear words admitted that reserve price was paid in time and no loss was caused to LDA in this manner." It is correct that there is nothing on record to indicate that any authority whatsoever have observed that any loss occurred to any person/department or LDA on account of granting exemption in this case, the orders read.

The court confirmed that reserve price of excess land was paid in due time by the exemptee as per policy. The court said that "even if it is believed true that arrears/dues if any are still outstanding against petitioner Mir Shakil-ur-Rahman, then under LDA Act 1975, the same may be recovered from him as arrears of Land Revenue."

The court, while giving a clean chit to MSR, said that Mir Shakil was allotted the plot in the year 1986 and at that time, neither development work of MA Johar Town, Phase II, Lahore, was started nor the Master Plan of MA Johar Town Phase II was approved, which is also certified by the prosecution witness.

The court said that the prosecution did not allege that in order to misuse authority, any illegal benefit was derived by the petitioner or co-accused, which is the main ingredient of Sec 9 a (vi) NAO 1999. There might be some violation of Exemption Policy but such violation cannot be treated as a misuse of authority. In order to prove criminal responsibility, prosecution is required to establish that there exists a clear-cut criminal intention/mens-rea on the part of petitioners/accused. In absence of criminal intent, mere violation of procedural rules is not sufficient to constitute an offence of corruption and corrupt practices, the court elaborated. The court, while giving reference of different precedents, said that there was no criminal offense committed by MSR and others.

The court order stated that "the prosecution case lies on presumption and assumption". No evidence is available on record to establish the element of mens-rea on the part of the former LDA officials, in absence whereof, they cannot be saddled with the offence of misuse of authority. The court elaborated that misuse of authority, no matter how grave and gross, does not constitute an offence under NAO 1999, unless it involves mens-rea and conscious knowledge or a guilty mind. In order to establish the offence of corruption and corrupt practices, mere irregularity by a holder of public office is not sufficient as the prosecution must establish misuse of authority with intention to gain benefit for himself or another, the order read. The court said that the National Accountability Bureau failed to prove that LDA officials Humayon Faiz and Mian Bashir had misused their authority and caused loss to the government exchequer as such offence of misuse of authority under S.9(a)(vi) NAO is not established.

The order stated that the petitioner, Mir Shakil-ur-Rahman, is saddled with role of abetment in this case. When the prosecution has failed to establish main offence falling within definition of 9 a (vi) NAO 1999, then how abetment of offence can be established against MSR, the court questioned.

The court categorically said that "not even an iota of evidence regarding abetting any offence by Mir Shakil-ur-Rahman is available on record."

The court said that the NAB failed to bring any incriminating material/ evidence on record to establish dishonest intention on the part of the LDA officials Humayon Faiz and Mian Bashir in forwarding summaries to the DG LDA for approval. It has not been alleged that either the accused themselves gained any pecuniary benefit or illegal gains by any means whatsoever.

Mere forwarding summaries to the DG LDA do not constitute offence of corruption or corrupt practices as defined u/s 9 a NAO 1999, unless it is proved through corroborative evidence that the same was done with ulterior motives and dishonest intention, the court concluded in its judgment regarding the former LDA officials. The court stated that the complainant of this case is not resident of the area, his no right has been infringed, hence he does not fall in the definition of aggrieved person.

The order read that Master Plan of MA Johar Town, Phase II, Lahore, has also been brought on record by the prosecution witness Azhar Ali, Director Town Planning, LDA, though he was not cross examined. It will be immaterial that if said prosecution witness is cross examined or not because he is not the preparator of Master Plan and his entire evidence would be hearsay, while date of final approval of Master Plan of MA Johar Town, Phase II, Lahore, has also been brought on record. The only other material witness in this case, as per the prosecution claim, is Syed Javed Iqbal, Secretary to then Chief Minister, the evidence of said secretary to then CM who put summary before then CM will not cast any difference on the merit of this case, the court order stated.

The court stated that the NAB failed to bring any supportive material to prove involvement of petitioner Mir Shakil-ur-Rahman and others in this case and there is no probability of their conviction. Further proceedings in the case would be nothing but a futile exercise, which must be curbed under section 265-K Cr.PC.

The court, while referring to section 265-K Cr.PC, said that when there is no probability of conviction, or charge appears to be groundless, then further processing the case would be nothing but an abuse of process of law.

The court acquitted Mir Shakil-ur-Rahman, Humayon Faiz Rasul and Mian Bashir Ahmed of all the charges. The court further ordered that, if any, properties, seized during investigation/inquiry be returned to the petitioners. However, the court cleared that the competent authorities shall be free to recover outstanding dues (if any) against the property in question, in accordance with law.

Regarding Mian Nawaz Sharif, who was nominated a co-accused in this case, the court stated that as Nawaz Sharif is already declared a proclaimed offender, his file be consigned to the record room and be put up as and when the proclaimed offender is arrested and sent up for trial.

It is pertinent to mention that Mir Shakil-ur-Rahman purchased a 54-kanal private property in Johar Town, Lahore, in 1986. On the pretext of this deal, NAB summoned him on March 05, 2020. Mir Shakil-ur-Rahman produced all the documents related to the property and got his statement recorded. However, NAB summoned him again on March 12. When he appeared for the inquiry, he was taken into custody. According to constitutional and legal experts, his arrest was out of the question by NAB during the due-diligence of the property documents because NAB law does not allow an arrest during the process of inquiry.

Two petitions of acquittal and bail were filed in the Lahore High Court. While rejecting the applications, the LHC division bench remarked to resubmit pleas at a later stage. The LHC disposed of Mir Shakil-ur-Rahman’s post arrest bail on July 8, following which Editor-In-Chief Jang-Geo Group petitioned the Supreme Court on Sept 11 to dismiss the LHC order and release him on bail. The SC's three-member bench, headed by Justice Mushir Alam and comprising Justice Yahya Afridi and Justice Qazi Amin, heard the case. The court accepted the bail plea of Mir Shakil-ur-Rahman on November 9, 2020.

Amjad Pervaiz, advocate, was counsel for Editor-in-Chief Geo-Jang Group Mir Shakil-ur-Rahman in the NAB court.