ORDER
SHEET
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Date Order with signature of Judge
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PRESENT: MR.
JUSTICE SYED HASAN AZHAR RIZVI
MR. JUSTICE AZIZ-UR-REHMAN __
DATE OF HEARING 05.07.2012
Mr.
Khawaja Naveed Ahmed Advocate for the Petitioner.
Mr. Noor Muhammad Dayo, Senior Prosecutor NAB.
Syed
Hasan Azhar Rizvi J; By this order we
would decide the Constitution Petition filed by the Petitioner Abid Majeed. A Reference
has been filed on 20.04.2012 before the Administrative Judge of Accountability
Courts, Karachi by the Director General NAB, copy of which has been filed by
the learned Counsel for the petitioner alongwith present Petition, wherein the
Petitioner has been shown as accused No.1.
2. Brief facts of the case
are that on receipt of anonymous complaint, which was followed by the complaint
of one Mr. M. Nasir Khan, Stenographer (Retd) and a formal complaint forwarded
by Controller General of Accounts, Islamabad toNAB for taking action into the
matter of fraud in CF-IV Section, AGPR Karachi regarding huge fraudulent
payment of GP Gund Advances during the years 2001-06 belonging to Ministry of
Health, Government of Pakistan, an inquiry was authorized and subsequently
converted into investigation. It revealed that officers/officials of Accountant
General of Pakistan, Revenue and others involved in commission of scheduled
offence(s) under the head of huge fraudulent payments of GP Fund Advances by
AGPR to the employees of Directorate of Central Health, Jinnah Post Graduate
Medical Center, Child Health Care Hospital, National Institute of Cardiology. As
per record, the names of 31 employees of different departments of Ministry of
Health have been used for GP fund advance to whom 71 paid vouchers were issued
and payment was made in the bank accounts other than the original subscribers. The investigation report further revealed that
all the cheques issued by AGPR amounting to Rs.7.127 Million have been credited
in the four bank accounts of accused No.2 S.M. Sajjad by marking the
endorsement from the side of subscriber. Present Petitioner in connivance with
Syed Mohammad Sajjad (who is accused No.2 in the Reference) have embezzled the
amount of GP Fund advance to the tune of Rs.7.127 Million and caused loss to
the Government Exchequer.
3. Mr. Khawaja Naveed Ahmed
learned Counsel for the Petitioner submitted that the petitioner is absolutely
innocent and has committed no offence as alleged against him. He contended that
the Petitioner is an old sick person and alleged offences pertained to the year
2001 to 2006. The Petitioner has retired and has lost his memory and even does
not know how his name has been included in the Reference. He urged that neither
any money has been deposited in Petitioner’s account nor any cheque has been
signed by him. There is no proof that he has obtained any single penny and no
recovery has been made from the petitioner. Learned Counsel for the Petitioner
further urged that the Petitioner was only an Auditor in BPS-14 and had no
power or authority to do any embezzlement of the amounts. Learned Counsel for
the Petitioner further contended that the case has been registered after six
years of the incident and no explanation has been given for delay, therefore,
the case of the Petitioner is of further inquiry and he is entitled for grant
of bail.
4. On the other hand Mr. Noor
Muhammad Dayo Senior Prosecutor NAB vehemently opposed the grant of bail to the
Petitioner and submitted that the Petitioner is nominated in the Reference and
specific role has been assigned to him. Learned Senior Prosecutor NAB further submitted
that the charge has already been framed in the case of the Petitioner and stated that the
direction be given to the Trial Court to conclude the matter within a timeframe.
He has relied upon 2008 YLR 2217 (Noor Ali Shah versus Chairman, NAB (Pakistan)
Karachi), 2008 YLR 2561 (Tariq Shahbaz versus Chairman NAB and others), 2009
SCMR 133 (Faisal Hussain Butt versus the State), PLD 2007 Karachi 27 (Raja
Muhammad Zarat Khan versus the State) and 2006 P.Cr.L.J 1859 (Ch. Muhammad
Aslam Jamil versus the State and another).
5. We have heard Mr. Khawaja
Naveed Ahmed learned Counsel for the Petitioner, Mr. Noor Muhammad Dayo learned
Senior Prosecutor NAB and perused the material available on record with their
assistance.
6. The duty of Senior Auditor has already been mentioned in
paragraph-6 of the Reference, which is as follows:-
“As per official procedure, a Senior Auditor is responsible to carry out
audit of GP Fund bills from concerned ledgers/GP Fund accounts, post/enter them
into the concerned ledger/account and submit the case to the
Superintendent/Assistant Accounts Officer (AAO) and Accounts Officer (AO) for
approval of GP Fund advances, who should particularly see that whether the GPF
advances are covered under proper sanction as well as sufficient balance is
lying at the credit of the subscriber.
7. Admittedly there is
commission of huge fraud and all the claims were purportedly submitted by
Directorate of Central Health Establishment Karachi but the subscribers either
belonged to the JinnahPost Graduate Medical Center (JPMC), NICH and Central
Government Dispensaries or to other Federal Health Offices. From the material available
on record, it transpired that specific role has been assigned to the
Petitioner, which is being reproduced for the sake of convenience hereunder :-
“Accused No.1 Abid Majeed was the Senior Auditor who was
mainly responsible for checking the initial cheques for which he was completely
failed”.
8. The medical ground taken
by the learned Counsel for the Applicant is not binding as the Medical Board
has opined that the Petitioner is being treated for hypertension and Hepatitis
C and needs further investigation for which he needs to be remain admitted,
therefore, in our humble opinion the Applicant accused is not entitled for grant
of bail on the medical ground when the prosecution has established its case
against the Petitioner.
9. The offence committed by
the Petitioner comes within the purview of white colour crime. The case of
Imtiaz Ahmed versus the State reported in PLD 1997 SC 545 of the Full Bench of
the Honourable Supreme Court comprising of Mr. Justice Ajmal Mian, Mr. Justice
Saiduzzaman Siddiqui and Mr. Justice Abdul Hafeez Memon, wherein it is observed
that:-
“I may observe that a distinction is to be made
between an offence which is committed against an individual like a theft and an
offence which is directed against the society as a whole for the purpose of
bail. Similarly, a distinction is to be kept in mind between an offence
committed by a individual in his private capacity and
an offence committed by a public functionary in respect of or in connection
with his public office for the aforesaid purpose of bail. In the former cases,
the practice to allow bail in cases not falling under prohibitory clause of section
497, Cr.P.C. in the absence of an exceptional circumstances may followed, but in
the latter category, the Court should be strict in exercise of discretion of
bail. In my view, the above category of the offender belongs to a distinct
class and they qualify to be treated falling within an exceptional
circumstances of the nature warranting refusal of bail even where maximum
sentence is less than 10 years’ R.I. for the offence involved provided the
Court is satisfied that prima facie, there is material on record to connect the
accused concerned with the commission of the offence involved.
The Courts should not be oblivious of the fact that at
present Pakistan is confronted with may serious problems/difficulties of
national and international magnitude, which cannot be resolved unless the whole
Pakistani nation as a united entity makes efforts. The desire to amass wealth
by illegal means has penetrated in all walks of life. The people commit
offences detrimental to the society and the country for money. Some of the
holders of the public office commit or facilitate commission of offences for
monetary consideration. In the above scenario the Courts approach should be
reformat-oriented with the desire to suppress the above mischieves. To achieve
the above objective, it is imperative that the Courts should apply strictly the
laws which are designed and intended to eradicate the above national evils but
at the same time, they are duty bound to ensure that the above approach should
not result in miscarriage of justice. It should not be overlooked that Article
9 of our Constitution, which relates to a fundamental right, guarantees life
and liberty of every person. Life, inter alia, includes the right to have
access to a fair and independent judicial forum for redress. A balance is to be
struck between national and individual interest/right.”
10. Contentions raised by the learned Counsel for the parties
require no emphasis that the tentative assessment is to be made for the purpose
of deciding a bail application and no in-depth appreciation or appraisal of
evidence is warranted at this stage. Even otherwise, we would refrain from
making any such observation which may cause prejudice to the case of any of the
parties at the trial. On a tentative assessment we find that the learned Senior
Prosecutor General NAB has established that there are sufficient material/circumstances
which require consideration by the Trial Court after recording of evidence.
11. The case law cited by the learned Senior Prosecutor NAB bears
some force and is attracted to the facts and circumstances of the case. As
pointed out by the Senior Prosecutor General NAB, the charge has already been
framed and the case of the Petitioner is at evidence stage.
12. For the foregoing reasons and following the dictum laid down by
the Honourable Supreme Court in the case of Imtiaz Ahmed supra, the instant
Petition was dismissed by our short order dated 05.07.2012 with the direction
to the Trial Court to conclude the Trial within three months.
13. Observations made
hereinabove are of tentative nature and the trial Court shall not be influenced
by any such observations.
J
U D G E
Karachi.
Dated:
______________ J
U D G E