ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Constitution Petition No.D-318 of 2018.

Date Order with Signature of Hon’ble Judge

For hearing of bail application

08-05-2019

Mr. Nisar Ahmed Bhanbhro, advocate for petitioner.

Mr. Muhammad Zubair Rajpute, SPP NAB.

Mr. Mehmood Khan Yousfi, DAG.

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Irshad Ali Shah, J; The facts in brief necessary for disposal of instant constitutional petition are that in year 2007 National Accountability Bureau took cognizance of complaint regarding fraud committed in General Provident Fund in District Shikarpur and accordingly filed four reference one after others, those were amalgamated and assigned number as Reference No. 01/2015 titled State Vs. Noor Muhammad and others. The allegation against the petitioner is that he in year 2002 and 2003 while working as senior auditor G.P fund section, District Accounts Office, Shikarpur, knowingly and deliberately and with malafide intention passed 1197 G.P fund bills, most of them were found to be fake, thereby caused loss to the public money to the tune of millions of rupees. The petitioner on being booked in above said reference, now by way of instant constitutional petition has sought for his release on bail pending trial.

2. It is contended by learned counsel for the petitioner that the petitioner being innocent has been involved in this case falsely, no cogent evidence is available with prosecution against the present petitioner with regard to his involvement with above said offence; the investigation of the case is complete; co-accused Muhammad Qasim Lakho, Abdul Karim Malano and Abdul Waheed Shaikh have already been admitted to bail by this Court and no useful purpose would be served, if the petitioner is kept in custody pending trial. By contending so, he sought for release of petitioner on bail, as according to him, his case is falling for further enquiry. In support of his contention, he relied upon cases of AKHTAR HASSAN ANSARI VS. THE STATE (2003 P.Cr.L.J 473) Karachi, and ARSAHD KHAN Vs The CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU NAB and 2 others (2017 YLR 1111.

3. Learned SPP for NAB and learned DAG for Federation of Pakistan have opposed to release of petitioner on bail by contending that it was he, who by misusing his authority has misappropriated the public money to the tune of millions of rupees against the fake G.P fund bills and he after commission of incident went in absconsion of eleven years; his case is distinguishable to that of the co-accused, Muhammad Qasim Lakho, Abdul Karim Malano and Abdul Waheed Shaikh who have already been admitted to bail and is identical to co-accused Noor Ali Shah, who has been refused bail by this Court. By contenting so, they sought for dismissal of instant constitutional petition.

4. We have considered the above arguments and perused the record.

5. There is no denial to the fact that the petitioner at the time of incident was senior auditor at G.P fund Section, District Accounts Office Shikarpur. He as such was required to scrutinize and audit G.P fund bills and to verify the respective G.P fund accounts number with reference to G.P fund ledger, as a legal obligation, which he failed to discharge obviously willfully, thereby drawn and misappropriated millions of public money against fake G.P fund bills, apparently in connivance with rest of the culprits and then preferred to go in absconsion for period which is spreading over eleven years. In that situation it would be pre-mature to say that petitioner being innocent has been involved in this case falsely by the National Accountability Bureau. None of the accused so released on bail, was auditor in District Accounts Office, Shikarpur. In these premises, it is rightly being contended by learned SPP NAB and learned DAG for the Federation that the case of the petitioner is distinguishable to that of the co-accused who have already been admitted to bail. There appear reasonable grounds to believe that petitioner is guilty of the offence with which he is charged.

6. In the case of Maqsoom Hussain Shah Vs State (2007 P.Cr.L.J 171) it has been held as under:-

“Bail, refusal of---Accused along with his co-accused, who was his close relative, had deprived complainant from Rs.6,00,000 by showing him a plot which was not owned and possessed by his co-accused and by so doing had committed fraud on complainant---Offences for which accused was being charged though did not fall under prohibition clause of S.497, Cr.P.C., but as accused had deprived an innocent person from his life long earning he did not deserve any discretionary relief---Challan had been submitted in the Court against accused---Trial Court, however, was directed to conclude the trial expeditiously.”

7. In the case of Sher Dil Khoso Vs. State (2000 P.Cr.L.J 1748) it has been held as under:-

Bail, grant of---Huge amount was drawn by unknown persons through forged cheques from the Bank---Certain offences alleged against accused were not bailable-- Accused, prima facie, appeared to be involved in said offences as Bank Officers, who were well-skilled in marking differences between forged signatures and original one overlooked the forged signatures---F. I. R., though was registered after lapse of more than eight months, but ground of delay in recording of F.I.R. was not always to be resolved against prosecution for purpose of bail---Circumstances having clearly made out a prima facie case against accused, bail could not be allowed.”

8. In case of Mehrban Ali Vs. State (2004 SCMR 229) it has been held as under:-

Ss.420/467/468/471-- Constitution of Pakistan (1973), Art.185(3)---Bail---Serious allegations of fraud, forgery and extortion had been levelled against the accused which were not without substance---Complainant had been allegedly deprived from immovable property worth lacs of rupees on the basis of forgery and fake documents allegedly prepared by the accused ---Power of-attorney executed by the complainant in favour of accused had been withdrawn for certain obvious reasons---Prima facie a case against the accused had been made out---Impugned order passed by High Court cancelling the bail granted to accused by the Sessions Court did not call for any interference--Leave to appeal was refused to accused in circumstances and bail was declined to him accordingly.

9. The case law which is relied upon by the learned counsel for the petitioner is on distinguishable facts and circumstances. In case of Akhtar Hussain Ansari (Supra), the accused was admitted to bail mainly for the reason that prosecution could not point out that what rule or office order was violated by the accused. In the instant matter, the charge against the accused is specific which prima-facie connect him with commission of alleged incident. In case of Arshad Khan (Supra) the accused alleged his repeated, arrest, detention and investigation. In that context he was admitted to bail. In the instant matter, the references filed against the petitioner have been amalgamated and it is treated to be one by learned trial Court and there is allegation by the petitioner of his repeated arrest and detention.

10. For what has been discussed above, it could be concluded safely that the petitioner is not found entitled to be released on bail, by way of instant constitutional petition, it is dismissed according.

Judge

Nasim/P.A