IN THE HIGH COURT OF SINDH, KARACHI
C.P.Nos.D-6196, 6197, 6264, 6265/2014, 861, 2154 & 2202/2015.
Present:
Mr. Justice Ahmed Ali M. Sheikh &
Mr. Justice Syed Muhammad Farooq Shah.
J U D G M E N T
Mr. Hussain Bux Baloch, Advocate a/w Petitioners in C.P.No.D-6196, 6197/2014, 861, 2154, /2015.
Mr. Khaleeq Ahmed, Advocate a/w petitioners in C.P.No.D-6264 & 6265/2015.
Mr. Jamroz Khan Afridi, Advocate a/w petitioners in C.P.No.D-2202/2015.
Mr. Noor Muhammad Dayo ADPG NAB a/w Investigating Officer Seema Razzaque NAB..
Date of hearing : 07.10.2015.
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Syed Muhammad Farooq Shah, J.:- Petitioners alongwith others nominated in FIR No. 51/2014, under Section 409, 467, 471, 477-A, 109 PPC, r/w Section 5(2), PCA-II, 1947, recorded by FIA, on 25.06.2014, were sent up before Special Court (Offences in Banks), Karachi; subsequently, the case was transferred from Special Court (Offences in Banks) to the Accountability Court No. 1, Karachi, under Section 16-A(a) of NAO, 1999, which is pending adjudication as Reference No. 16/2014.
2. The inquiry/investigation reveals that accused Zubair Ali Almani was appointed in the year 2006 as Assistant in National Bank of Pakistan, Pano Aqil Branch, later worked as OG-III and posted in Government Section as Incharge. It is alleged that the said accused opened 23 bank accounts and funds were transferred and re-deposited during the year 2011 to August, 2014; he deposited cheques of different persons account maintained at NBP, Pano Aqil, aggregating to Rs. 684.4 Million in his personal account and other accounts of his family and friends, maintained at various banks of Sukkur region. The accused was responsible to prepare daily sheets/government debit/ credit scroll and Respondent Branch Voucher (RBV); he deposited the amounts fraudulently and purchased a number of properties during the said period. Specific allegations have been leveled against co-accused with role in the said Reference. The investigation report and contents of aforesaid reference reveals that the petitioners did not perform their duties honestly and malafidely assisted the accused No. 1 for smooth conduct of the fraud. They have made necessary entries in the relevant record and passed the same for further action.
3. Specific role in the commission of offence has been assigned to the accused No.1 and other petitioners, which is as under:-
C.P.No.D-6196 of 2014
Petitioner Abdul Samad Sheikh was posted as OG-I f in NBP Pano Aqil from 01.10.2009 to 27.01.2012. He has signed the RBV singly and jointly without proper verification of government instruments and daily scroll and passed the fraudulent vouchers on different dates which shows that he has failed to conduct his duties and malafidely assisted the main accused Zubair Ali Almani who has disclosed that all the embezzled amount was distributed among other accused by the petitioner as he was coming to Pano Aqil Branch daily even after his transfer to another branch. As per statement of accused Zubair Ali Almani he has paid amount i.e. 14,00,000/- and Rs.60,000,000/- as share to the petitioner through cash and banking channel.
C.P.No.D-6197 of 2014
(i) Petitioner Kifayatullah Shaikh was posted as Cashier in NBP Pano Aqil from 17.3.2011 to 01.8.2011. He has signed the RBV singly and jointly without proper verification of instruments/vouchers on different dates which shows that he has failed to conduct his duties and malafidely assisted the accused Zubair Ali Almani. He also worked as Remittance Incharge/Clearing Agent from 13.5.2011 to 07.9.2012. He did not check the accounts against which said cheques were drawn and cleared all those cheques.
(ii) Petitioner Syed Lal Shah was posted as Cashier in NBP Pano Aqil Branch from 09.2.2012 to 18.9.2012. He has signed RBV singly and jointly without proper verification of instruments/vouchers on different dates which shows that he did not conduct his duties and malafidely assisted and aided and facilitated the main accused Zubair Ali Almani for smooth conduct of this fraud.
C.P.No.D-6264 of 2014
(i) Petitioner Azhar Ali Dharejo was posted as Cashier in NBP Pano Aqil Branch from 05.8.2011 to 16.5.2012. He has signed RBV singly and jointly without proper verification of instruments/vouchers and daily scroll. He passed the fraudulent vouchers on different dates without proper verification and did not conduct his duties and malafidely assisted and aided and facilitated the main accused Zubair Ali Almani for smooth conduct of this fraud.
(ii) Petitioner Abdul Hafeez Dharejo was posted in NBP Pano Aqil from 09.3.2009 to 22.11.2012 and 20.3.2013 to date. Being Government Section Incharge he prepared and signed government debits credit scroll and signed RBV singly and jointly without proper verification of government instruments and daily scroll and passed the fraudulent vouchers on different dates thus he malafidely assisted and aided and facilitated the main accused Zubair Ali Almani of Reference No.16 of 2014 for smooth conduct of this fraud.
C.P.No.D-6265 of 2014
(i) Petitioner Ashfaque Hussain Shah Syed was posted as AVP / Joint Custodian. While discharging his common/joint/ several/vicarious liabilities, he acted negligently being AVP/Joint Custodian of the Branch.
(ii) Petitioner Nusrat Hussain Shah was posted in NBP Pano Aqil as branch and operation manager from 15.11.2011 to 22.11.2012 and 26.2.2013 to 19.6.2014. He passed fraudulent vouchers on different dates without proper verification of instruments and documents/scroll prepared by accused Zubair Ali Almani. Hence he aided and assisted the accused Zubair Ali Almani in the commission of said offence.
C.P.No.D-861 of 2015
Petitioner Khadim Hussain Mahar is friend of the accused Zubair Ali Almani. He opened four accounts maintained at various banks and fraudulently deposited huge amount via debiting Government account Central C-1 maintained at Pano Aqil Branch NBP by Zubair Ali Almani and other officers of NBP. He is beneficiary of the embezzled amount.
C.P.No.D-2154 of 2015
Petitioner Saddique Hussain Chachar is driver of accused Zubair Ali Almani. He opened two accounts maintained at Sindh Bank Pano Aqil Branch and Sonery Bank main branch Sukkur and fraudulently deposited huge amount via debiting Govt. Account Central C-1 maintained at Pano Aqil Branch BBP by the accused Zubair Ali Almani and other officers of NBP. He is beneficiary of the embezzled amount.
C.P.No.D-2202 of 2015
Petitioner Bashir Ahmed Almani was posted in the NBP City Branch Pano Aqil Branch from 01.7.2011 to 31.8.2013. He did not verify the CMA Cheques without advice issued by the Military offices regarding payments of their issued cheques and passed the CMA Cheques which were already passed and crossed and stamped. Hence he aided and assisted the accused Zubair Ali Almani in the commission of said offence.
4. Learned counsel for the petitioners argued that the allegations against the petitioners only show the mere negligence but no malafide on their part. They further argued that entire documentary evidence has been collected and if the petitioner is granted bail, there would be no question of tampering the record. It is further contended that the petitioners were not responsible for the alleged transaction as they were posted/working in NBP City Branch, Pano Aqil and they had no concern with the alleged transaction or embezzlement. It is contended that the role of petitioners requires further enquiry as to whether they have committed negligence in their official duties or acted with malafide intention which will be decided during trial.
5. Conversely, learned A.D.P.G NAB with the assistance of Investigating Officer argued that the petitioners committed misuse of their authority and failed to perform their duties vigilantly and also acted malafidely to benefit the main accused No.1. They have also shown us different paragraphs of the investigation report in which it is stated that some of the petitioners signed the Responding Branch Voucher (R.B.V) singly and jointly without proper verification of instruments on different dates, therefore, it appears that they failed to perform their duties and malafidely assisted the main accused for smooth conduct of the fraud in question.
6. Heard the arguments. We have examined the role of each petitioner. It is also matter of fact that normally in the NAB Reference where so many accused are involved, the role of each accused is defined separately and we are also of the view that in white collar crimes, the court has to see the role of each accused. Perusal of same shows that accused Zubair Ali Almani approached for the plea bargain to the NAB authorities and he did not press the bail petition for the reason that accused No.1 will again approach NAB authority for entering into plea bargain as earlier his plea bargain application was dismissed due to non-mentioning of correct figure of liability.
7. AS has been argued by the counsel for petitioners that bail after arrest has been extended to the co-accused Abdul Bari in C.P.No.D-1294/2015, therefore, keeping in view the rule of consistency above named petitioners are also entitled for the same relief; the rule of consistency does not apply in the circumstances of the present case as above petitioners have been admitted to ad-interim pre-arrest bail hence the investigation could not be conducted by the respondents (NAB) in stricto senso. The grounds for consideration of pre-arrest bail and that of after arrest are quite distinguishable. No enmity whatsoever or malafide for lodging the FIR by FIA or Reference by the NAB with ulterior motive has been shown by the petitioner that they shall be humiliated, maltreated or disrespected if bail before arrest is not granted to them. Undeniably bail before arrest is an extra-ordinary relief to be granted in extra-ordinary situation to protect innocent person from victimization through abuse of law with ulterior motive as the said relief is not a substitute or an alternative for post-arrest bail. Besides, the petitioners must also show that their arrest was being sought for ulterior motives, particularly on the part of the police or concerned agency, to cause irreparable humiliation to them and to disgrace and dishonour them; further to establish that they had not done or suffered any act, which would disentitle them to a discretionary relief showing that they had no past history of criminal record or that they had not been fugitive from law. In our view, when petitioners specifically named in the FIR and witnesses also implicated them in commission of offence through documentary evidence, available on the record then such extra ordinary concession cannot be extended.
8. So far as exercise of discretion under section 561-A Cr.P.C. to quash the proceedings of said FIR/proceedings is concerned, such relief may not be extended as an additional or an alternate remedy, nor the same could be used to override the express provisions of law, as the same powers can admittedly be exercised only when no remedy for the redress of grievances is available, as inherent powers can be invoked to make a departure from the normal course prescribed by law, only in exceptional cases of extra-ordinary nature and reasons must be offered to justify such a situation.
9. After hearing the learned counsel for the parties, by a short order dated 07.10.2015 the petitions were dismissed. Above are the reasons for the said short order. It needs not to iterate that this order being tentative in nature shall not prejudice the trial court.
J U D G E
Aamir/PS J U D G E