ORDER SHEET

IN THE HIGH OCURT OF SINDH, BENCH AT SUKKUR.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Const. Petition No. D- 4570 of 2015.

 

Date                     Order with signature of Judge

 

 

                                       Present:

                                      Mr. Justice Aqeel Ahmed Abbasi &

                                      Mr. Justice Muhammad Faisal Kamal

                                      Alam

For Katcha peshi.

 

Mr. Hussain Bakhsh Baloch, Advocate for Petitioner.

Mr. Muhammad Zubair Malik, Special Prosecutor NAB.

Mian Mumtaz Rabbani, D.A.G.

 

Date of hearing:        06.04.2016

 

 

O  R  D  E  R

 

Muhammad Faisal Kamal Alam J. Through instant petition, the petitioner namely, Munir Ahmed son of Muhammad Juman  Seelro has sought his enlargement on bail after his arrest in NAB reference i.e. Ref. No.1 of 2015 (previously reference No.7 of 2014). Petitioner was arrested in above NAB reference No.1/2015 State-Versus Noor Muhammad Ujjan and others, on the allegations of embezzlement/misappropriation of G.P. Fund of District Accounts Office, Shikarpur. Case of Respondent NAB is that Petitioner and other co-accused, inter alia, in connivance with each other have embezzled an amount of Rs. 46.949 Million by preparing 74 bogus G.P Fund bills and thus caused loss to the public exchequer. Reference has been filed and the case is pending adjudication in the learned Accountability Court at Sukkur, whereas, petitioner is behind the bar since his arrest, however, he is no more required for any further inquiry or investigation.

2.                    Learned counsel for petitioner has strenuously argued that no specific role has been assigned to the petitioner in the above NAB Reference, which may connect the petitioner with alleged offence of embezzlement/misappropriation of GP funds, nor any material whatsoever has been collected or produced by the NAB authorities before the learned trial Court or even before this Court, except alleged acceptance of guilt by petitioner who had filed application of voluntary plea bargain before NAB authorities. It has been further argued that as per record the accused Abdul Ghaffar Daudpoto, Head Master of Government High School Nim Sharif, Shikarpur, who was also officiating as DDO at that relevant time has implicated the present petitioner in the above reference by alleging that petitioner presented some bogus G.P Fund bills for his signatures. However, no particulars or even amount in respect of such alleged bills has been detailed in the reference filed by NAB authorities. Per learned counsel, even the application for plea bargain submitted to the NAB authorities by the petitioner was not voluntary, whereas, it was only to the extent of Rs.3,40,000/- [rupees three hundred and forty thousand only] alleged to have been misappropriated through petitioner. However, per learned counsel, such application presented in the Accountability Court, Sukkur in the above Reference No.1 of 2015 was later on withdrawn by NAB itself. It was further argued that one of the reasons for such withdrawal was mentioned in the correspondence dated 1.9.2015, which has been filed as Annexure-B/2 with the present petition, wherein, Respondent No.2/Director General, NAB, Sukkur has, inter alia, stated that petitioner i.e. Munir Ahmed Seelro is not the accused, but one Munir Ahmed HST (Retired) is the accused, therefore, application for plea bargaining/voluntary return, of present petitioner could not be recommended. Per learned counsel, the NAB authorities have miserably failed to establish any monetary benefit which would have accrued to petitioner in any manner. It has been prayed that matter requires further inquiry, therefore, petitioner may be released on bail subject to furnishing surety.

3.                    Conversely, the learned Special Prosecutor NAB has opposed grant of bail to the petitioner and argued that act of petitioner to avail plea bargain in itself amounts to admission of his guilt, therefore, he is not entitled to get concession of bail. Learned Special Prosecutor further argued that petitioner with connivance of co-accused persons has caused loss to the public exchequer, hence equally liable to be punished along with other co-accused persons.

4.                    We have heard the learned counsel for the petitioner and the Special Prosecutor NAB and perused the record with their assistance. From perusal of the contents of Reference No.1 of 2015, (previously Reference No. 7 of 2014 submitted by the NAB authorities in the Accountability Court, Sukkur, it transpires that no specific role has been assigned to the present petitioner with the alleged offence of embezzlement/misappropriation of GP fund of District Office, Shikarpur, who appears to have been implicated on the basis of statement of co-accused namely Abdul Ghaffar Dautpoto on the allegations that petitioner during the year 2003 presented some of the bogus bills for his signature in respect of GP fund. It will be advantageous to reproduce that allegation against the present petitioner as detailed in para 4 of Reference which reads as follows:

“The accused appeared before IO and stated that he was DDO of GHS Nim Sharif, he was on vacation in July 2003 when he received bills along with sanction orders of Staff through a private person (Muneer Ahmed) who showed/pretended himself as newly posted teacher there. He further stated that when NAB called him in investigation he then approached School Incharge and through his personal efforts traced that person who came to him in July 2003 and got the bills signed from him.”

5.                    It further appears that even in the plea bargain application petitioner has stated that he has been falsely implicated by co-accused Abdul Ghaffar Daudpoto, whereas, such plea bargain application was not recommended by Respondent No.2 (D.G NAB), while observing that present petitioner is not an accused, but one Munir Ahmed HST (Retired) is the accused in the above reference. It will be advantageous to reproduce hereunder the relevant portion of DG NAB Sukkur’s letter which reads as follows:

“2. One of accused in Reference is Munir Ahmed Selro s/o Mohammad Juman by caste Seelro presently confined in CentralPrison-1, having CNIC No. 43301-1402878-7 applied for Plea Bargain. According to investigation he had committed scheduled offence therefore, competent authority rejected his Plea Bargain on the grounds that the accused Munir Ahmed Seelro is not the accused Munir Ahmed HST (Retired) as mentioned in paragraph 10 (ii) (The Daudpota, the role of accused Abdul Ghaffar Daudpota, DDO/Head Master Govt. High School Nim Sharif).

3.         In view of above facts, the Plea Bargain Application of the accused Munir Ahmed Seelro for amount of Rs.340,000/- is not recommended”. (Underlining is for emphasis).

This shows that even prosecution has some doubt in their minds about identity of the present petitioner. Considering all these facts, the case at hand requires further inquiry for proving the guilt of present petitioner with regard to alleged offence. We are of the view that under above circumstances of the case, mere fact that petitioner opted for plea bargain, which was not even recommended by the NAB authorities, or duly approved by the Accountability Court, cannot operate as a bar for withholding the bail, if the accused otherwise makes out a case for grant of bail on merits.

6.                     Accordingly, the petitioner was granted bail in the sum of Rs.5,00,000/- (Rupees Five lac) with PR bond in the like amount to the satisfaction of the learned trial Court vide our short order dated 06.04.2016, and these are the reasons for such short order. However, it is clarified that the observations made hereinabove are of tentative nature and would not, in any manner, influence the trial pending before the learned Accountability Court at Sukkur, which shall be concluded strictly in accordance with law on the basis of evidence and material available on record.

 

                                                                                    JUDGE

                                                       JUDGE

N.M.