IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-3795 of 2016

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Date Order with signature of Judge

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Present:

Muhammad Ali Mazhar, J.

Abdul Maalik Gaddi, J.

Nadir Jan …………. Petitioner

Versus

The Chairman,

National Accountability Bureau

& 03 others …………. Respondents

Mr. Muhammad Ramzan Tabassum, Advocate alongwith the Petitioner Nadir Jan.

Mr. Akram Javed, Special Prosecutor, NAB.

Mr. Ahmed Bin Zahid, AD/IO, NAB.

Date of hearing : 13.03.2017

ORDER

Abdul Maalik Gaddi, J. Through this constitution petition, the petitioner has applied for pre-arrest bail in NAB Reference No.09 of 2014. Initially, the petitioner was not nominated in the said reference, however, by means of supplementary reference filed by the respondents in the Accountability Court No.I, Karachi, he has been implicated as accused No.7. The petitioner was granted interim pre-arrest bail by this court on 27.06.2016 subject to furnishing his solvent surety in the sum of Rs.300,000/- (Rupees Three Lacs only) and P.R. bond in the like amount to the satisfaction of the Nazir of this court and today this bail application is fixed for confirmation or otherwise.

2. Facts necessary for the disposal of this petition are that NAB authority allegedly received various complaints against accused persons named in the Reference regarding their involvement in corruption and corrupt practices, cheating public at large. The competent authority of NAB authorized the respondent No.3 to investigate the matter. During investigation it was allegedly revealed that accused Shafiq-ur-Rehman and Muhammad Inam used to induce general public to deposit their savings with them for the purposes of investment in Modaraba business under the garb of Islamic mode of investment and about one hundred twelve (112) peoples from the general public deposited their huge savings with account of accused Shafiq-ur-Rehman and Muhammad Inam in the hope of earning profit, but the said accused persons allegedly cheated and defrauded them, and as such, embezzled the invested amount in connivance with each other. However, the allegation against present petitioner Nadir Jan is that he allegedly received an amount of Rs.115,133,500/- in his account, M/s. Owais Enterprises, Account No.204408079, UBL Bank, SITE Branch, Karachi out of which he received Rs.16,000,000/- directly from the account of accused Shafiq-ur-Rehman. It is also alleged in the Reference that the petitioner was found involved in the Modaraba scam, therefore, his name was included in the supplementary challan as an accused.

3. Learned counsel for the petitioner argued that the petitioner has been falsely implicated by the NAB. No specific role has been assigned against him except a sweeping statement in the Reference. The alleged involvement of the petitioner is highly doubtful and matter is required for further inquiry. He further argued that initially Reference was submitted by the respondent No.3 bearing Reference No.09 of 2014 against accused Shafiq-ur-Rehman and others and later on the respondents No.2 and 3 started blackmail and harass the petitioner with intention to fulfill their illegal and unlawful demands and when the petitioner refused to fulfill the illegal and unlawful demands of the respondents and approached to this court through C.P. No.D-2336 of 2016 for his protection and when this court issued directions to the respondents to place on record the list of inquiry/ FIR or reference, if any, against the petitioner vide Order dated 25.04.2016, thereafter, the respondents No.3 and 4 with the collusion of each other submitted the supplementary reference on 16.06.2016 against the petitioner which clearly shows the malafide intention of the Investigating Officer/respondent No.4. Per learned counsel Investigating Officer of the case has miserably failed to disclose any account of the petitioner in which the amount has been debited or transferred in any other account, while on the other hand, the Investigating Officer clearly stated that the accused persons including the petitioner with the collusion of each other has cheated public at large in the garb of Modaraba, which clearly shows that matter is highly doubtful and required further probe. Per learned counsel Investigating Officer has miserably failed to point out any single transaction from the account of the petitioner to someone else in the supplementary reference with regard to involvement of the petitioner in this case and the allegation in the reference against petitioner are general in nature and NAB authority intend to arrest the petitioner on the basis of huge amount was credited in the account of the petitioner from the bank account of Shafiq-ur-Rehman and accused Shafiq-ur-Rehman, Abdul Rehman, Muhammad Inam and Moulana Mufti Saifullah Jameel have already been granted bail by this court having almost similar role in the Reference, therefore, according to him following the rule of consistency this accused is also entitled for same relief and interim bail already granted to the petitioner may be confirmed.

4. The learned Special Prosecutor, NAB argued that the role of the petitioner in the supplementary reference is clear that he has committed an offence of corruption and corrupt practices as defined under Section 9(a) and punishable under Section 10 of NAB Ordinance 1999. The learned Presiding Officer, Accountability Court has already taken cognizance of the aforesaid Reference. Various complaints were received from general public against accused persons Shafiq-ur-Rehman, Muhammad Inam, Muhammad Talha and others including petitioner. The accused persons were receiving huge amount from general public on the pretext of Modaraba business (Islamic Mode of financing) and they promised to pay huge profit to the investor. The whole scam was facilitated through a Fatwa issued by Darul Ifta Jamia Binoria, Karachi. He further argued that during the investigation, the petitioner Nadir Jan was also found involved in this Modaraba scam and his bank account was identified in which huge deposit was credited from the bank account of Shafiq-ur-Rehman. He further argued that the sufficient documentary evidence is available on record which established the involvement of the petitioner in the commission of the offence of cheating public at large and in criminal breach of trust under NAB Ordinance 1999, therefore, he is not entitled for any relief.

5. Heard the learned counsel for the parties and perused the record.

6. The basic allegation against all the accused in the Reference is that Shafiq-ur-Rehman alongwith other accused persons including petitioner cheated public at large by luring general public to invest in their fraudulent Modaraba business and looted their hard earned money by aiding, assisting and abetting each other in the commission of the offence. The reason of implicating the petitioner in the supplementary reference is that during investigation the bank account of the petitioner was identified in which huge deposits were credited directly from the bank account of accused Shafiq-ur-Rehman and in this regard, the allegation against the petitioner Nadir Jan as contained in paragraph No.6 of supplementary reference is as under:-

“6. That, in further investigation, various bank accounts of Abdullah Shoukat (accused No.5), Mufti Saifullah Jameel (accused No.6), Mufti Nadir Jan (accused No.7) and Faizan Ahmed Siddiqui (accused No.4) were identified in which huge deposits were credited and also enormous funds were credited directly from the bank accounts of Shafiq-ur-Rehman (accused No.1) to the bank accounts of above name accused persons.”

Though the above allegation has been denied by the learned counsel for the petitioner, however, the Investigating Officer of the case has not shown us any direct complaint received by him from any claimant or the investor against the petitioner. The petitioner was not nominated in the original reference but he was implicated in the supplementary reference, which tentatively gives this impression that at initial time no evidence was available against the petitioner. The amount lying in the personal account of petitioner needs evidence whether it was money of Modaraba business or from the petitioner’s own resources or earnings, however, for the amount mentioned in investigation report in subparagraph (c) of paragraph No.9 that it was transferred/credited from the account of main accused again it is to be established during trial that this amount was really credited to deprive or misappropriate the amount of investors in the Modaraba business or there was some dealings between the petitioner and the main accused. This aspect of the case requires further probe during trial. So far as, the alleged Fatwa signed by the petitioner is concerned, it is the dominion of the trial court to examine its effect and validity that lured or influenced the mind of general public to such a great extent that they invested the amount in the Modaraba business. This exercise cannot be done at this stage as this fact requires evidence. We also noticed that the case in hand entirely depends upon documentary evidence, which seems to be in possession of the prosecution and reference has already been submitted, therefore, at this stage, there is no possibility of tampering with the evidence by petitioner, which is entirely documentary in nature and also in possession of the prosecution. It is settled law that at the bail stage, deeper appreciation of evidence cannot gone into but a bird eye view is to be taken to available record before the court to satisfy prima facie, whether accused are connected with the commission of offence or not. Even otherwise, benefit of doubt will go to accused even at bail stage.

7. It is alleged in paragraph No.6 of supplementary reference that huge amount was transferred in the account of petitioner and Moulana Mufti Saifullah Jameel from the account of accused Shafiq-ur-Rehman. However, accused Shafiq-ur-Rehman, Muhammad Inam, Abdul Rehman and Moulana Mufti Saifullah Jameel have already been granted bail by this court vide detailed orders passed on 27.02.2015, 24.07.2014, 20.02.2017 and 20.02.2017 in C.P. No.D-3294 of 2014, C.P. No.D-2885 of 2014, C.P. No.D-354 of 2017 and C.P. No.D-4162 of 2016 respectively, and the case of the petitioner almost on same footings as in case of Moulana Mufti Saifullah Jameel, therefore, following the rule of consistency, this petitioner/accused is also entitled for same relief. The Hon’ble Supreme Court in the case of Muhammad Fazil alias Bodi v. The State reported in 1979 SCMR 09 has granted bail to the accused while observing as under:-

“Without going into the merits of the case and the various rulings mentioned in the petition for leave to appeal requiring out consideration and interpretation, we think that the petitioner should be released on bail on principle of requirement of consistency in the same case and for the similar reason that co-accused to whom a role similar to that of the petitioner was attributed had been so released by another learned Judge of the same High Court. This petition is, accordingly, converted into an appeal and disposed of as such. The petitioner (Muhammad Fazil alias Bodi) is allowed bail in the sum of Rs.25,000/- with two sureties in the like amount to the satisfaction of the Assistant Commissioner, Kasur.”

In case of Muhammad Daud and another v. The State and another reported in 2008 SCMR 173, the Hon’ble Supreme Court has observed as follows:-

“Co-accused in the case had already been admitted to bail. Accused were also allowed bail in view of the rule of consistency in the circumstances.”

8. It has vehemently been argued by the learned Special Prosecutor, NAB that the petitioner has remained absconder in this case, involved in another criminal case and if bail is granted, he would jump the bail and, thus, he is not entitled to any indulgence in the matter of bail. We have, however, not felt persuaded to agree with the learned Special Prosecutor, NAB in this regard. It has already been held by the Hon’ble Supreme Court in cases of Ibrahim v. Hayat Gul and others reported as 1985 SCMR 382 and Muhammad Sadiq v. Sadiq and others reported as PLD 1985 SC 182 that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and such right cannot be refused to him merely on account of his alleged abscondence which is a factor relevant only to propriety. Moreover, mere pendency of criminal case against the petitioner in another court do not sufficient to prove that the petitioner is a habitual offender unless it is proved/established that he has been convicted in the said FIR and the said conviction has been finally maintained by the superior Courts. In this regard, we are supported with the case of Jafar @ Jafri v. The State reported in 2012 SCMR 606.

9. As observed above, the case of the petitioner requires further probe and as a result of above discussion, interim pre-arrest bail granted to the petitioner Nadir Jan on 27.06.2016 is confirmed on same terms and conditions. The above findings are tentative in nature and shall not prejudice the case of either party during trial. In addition to the amount of surety already furnished by the petitioner, he will also furnish tangible security in the sum of Rs.16,000,000/- (Rupees Sixteen Million only) to the satisfaction of the Nazir of this court. The petitioner will also deposit original valid passport with the Nazir of this court. At the time of passing short order, petitioner’s counsel prayed for some time to furnish the tangible security equivalent to Rs.16 Million. One month’s time was granted to the petitioner to do the needful. However, in case of failure to furnish tangible security within one month, the Investigating Officer may initiate action against the petitioner for cancellation of bail and this petition stands disposed of in the above terms.

10. The above are the detailed reasons for the short order announced by us on 13.03.2017, whereby the instant bail application was disposed of by confirming the order dated 27.06.2016 in the above terms.

Karachi

Dated:

JUDGE

Faizan A. Rathore/P.A.