ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI
 

 

C.P. No.D-1826 of 2012

C.P. No.D-1827 of 2012

C.P. No.D-1828 of 2012

C.P. No.D-1829 of 2012

C.P. No.D-1830 of 2012

 

 

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Date                            Order with signature of Judge

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PRESENT:          MR. JUSTICE SYED HASAN AZHAR RIZVI.

     MR. JUSTICE MUHAMMAD SHAFI SIDDIQUI

 

 

 

DATE OF HEARING 02.07.2012

 

M/s. Yousuf Moulvi and Shahab Sarki Advocates for the Petitioners.

 

Mr. Noor Muhammad Dayo, Senior Prosecutor NAB.

 

 

 

Syed Hasan Azhar Rizvi J;             By this common order, we intend to dispose of five Cons. Petitions Nos.D-1826 to 1830 of 2012 as facts and circumstances of all the five petitions are almost similar and the same have been filed challenging the Warrant of Arrest issued by the Chairman NAB on 10.04.2012 for commission of offence under section 9(a) of National Accountability Ordinance, 1999and schedule thereto and subsequently reference has been filed on 11.05.2012 before the Administrative Judge of Accountability Courts, Karachi by the Chairman NAB, copy of which has been filed by the learned Counsel for the petitioners with statement dated 29.06.2012, wherein all the Petitioners have been shown as accused No.2 to 6

2.       Brief facts of the case are that during scrutiny and reconciliation exercise held in Accountant General Office in 2004, it was revealed that 35 pension sealed authorities, which had not been issued by the Accountant General Sindh office, were found entered in the District Accounts Offic, Hyderabad Office in PPO Register and payment of commutation and pension was made to 35 fake/ghost pensioners causing loss to the Government exchequer to the tune of Rs.29,223,296/- and Rs.2,940,751/- for fake pension and commutations of bills totalling Rs.32.16 Million. On complaint received from source report, an inquiry was conducted against the officials of District Accounts Office Hyderabad and others that was converted into investigation by Authorization Letter dated 11.09.2009 whereby it transpired that the officials of District Accounts Office Hyderabad used names of ghost employees of Education and Health Department of Government of Sindh to prepare fake pension documents and for that procedure was adopted for encashing fraudulent pension commutation on the basis of forged/fictitious documents in connivance with private persons in violation of settled procedure, pension/Treasury rules of Audit Menual and regulation for preparation of pension documents issued by the Government from time to time.

 

3.       M/s Yousuf Molvi and Mr. Shahab Sarki learned Counsel for the Petitioners submitted that the petitioners are innocent persons, who were never involved in any criminal activities throughout their employments in Government service and have been falsely implicated and arrested due to enmity malafidely. Prosecution case set-up against the petitioners in NAB Reference is of disbursement of Rs.32.16 Million through 35 ghost employees through cheques of different banks after preparation of forged, fictious and fabricated documents. It was further argued by the learned Counsel for the Petitioners that the cases against the Petitioners are based on documentary evidence and all the documents pertaining to the matter are in possession of the District Account Office, Hyderbad and in the office of Accountant General Sindh, therefore, there is no chance of tempering with the evidence. Learned Counsel for the Petitioners urged that admittedly the Petitioners are not beneficiaries of the amount and the amount of Rs.32.16 Million has been paid to 35 persons whose names and details are mentioned in the investigation report after initial inquiry, which has already been filed at page-65 as Annexure “E” with the statement filed by the learned Counsel for the Petitioners dated 29.06.2012. Learned Counsel for the Petitioners submitted that Petitioners are confined in lockup of NAB Authorities since 14.04.2012 and the last remand was expired on 17.5.2012. Reference has already been submitted on 11.05.2012 before the Administrative Judge, Accountability Court at Karachi. It was also contended by the learned Counsel for the Petitioners that the proceedings against the Petitioners have been initiated without any prior inquiry or investigation by the Chairman NAB or any other officer of the NAB authorized by him. Learned Counsel for the Petitioners further contended that there is unexplained delay in initiating inquiry against the Petitioners and according to their own documents commission of fraud and forgery was deducted in the year 2004 but inquiry was started in 2009 and arrest was made in 2012 but no plausible reason for delay in filing Reference has been given. Learned Counsel for the petitioner further submitted that the cases of the petitioners are of further inquiry as such they may be granted bail. He placed reliance upon 2005 SCMR 1666 and 2008 P.Cr.L.J. 910.

 

4.       Mr. Shahab Sarki learned Counsel for the Petitioners in C.P. No.D-1828 has referred to page-33  filed alongwith statement dated 29.06.2012 by the learned Counsel for the Petitioners, wherein duties of the auditors has been enumerated. He contended that the Petitioner is not an Auditor but Sub-Accountant at District Accounts office Hyderbad. He drawn our attention to the procedure of submission of pension mentioned as Annexure “F” at page-69 filed alongwith statement.

 

5.       On the other hand Mr. Noor Muhammad Dayo Deputy Prosecutor NAB vehemently opposed the grant of bail to the Petitioners and submitted that after thorough inquiry and investigation by NAB Authorities Reference has been submitted before the Accountability Court. Specific Role has been assigned to each of the Petitioners, duties and responsibilities of the officials of the office of the Accountant General Sindh, Karachi and District Accounts Office Hyderabad for processing of pensions and commutation has already been provided as per rules of Audit Manual and Treasury Rules. Learned DPG NAB further submitted that cases against the Petitioners are fixed for frmaing of charge. He invited attention of this Court towards the statement under section 161 Cr.P.C of Deputy Manager, Provincial Headquarter NADRA. According to that witness, out of 35 CNICs of the ghost pensioners, 29 CNICs were analysed and examined and were found fake and fictitious. Petitioners have failed to comply with the proper rules and procedure while preparing pension payment and had failed to verify the proper identification of the pensioner as per Clause (f), Rule 172 of Auditor’s Duties, Pension Audit Section, Chapter-8 of Audit Manual.

 

6.       We have heard M/s Yousuf Molvi and Shahab Sarki learned Counsel for the Petitioners, Mr. Noor Muhammad Dayo learned Deputy Prosecutor NAB and perused the material available on record with their assistance.

 

7.       The procedure for verification and checking of pension payment order (PPOs) has already been laid down in the Letter No.TM/AGC(85)/01 dated August 08, 1985, which are as follows:-

“(1) Pension documents in respect of any retired Government employee are received at Office of Accountant General Sindh through individual or representative of the concerned department. It contains retirement letter, Descriptive Role, copy of NIC/CNIC , photograph. Last Pay certificate, No inquiry and Bonafide certificates of the employee from respective department, from where he/she retires. Presently, pension cases of retired Government employee being prepared and finalized by the concerned District Accounts Offices.

 

(2)      The pensioner’s papers prepared by the concerned department are submitted in vigilance cell of AG for verification. The vigilance cell scrutinizes pension papers as well as verifies the signatures of concerned pension sanctioning authority/DDO/Department. After completion of all formalities, cases file is forwarded to concerned pension section (PN-1 deals with Education Department and other and PN-II deals with Health Department and others) for finalization of case.

 

(c)      After preparation of the case and authorization by Accounts Officer of PN-1 and PN-II as case may be), it is forwarded to PN-III for writing up of authority, affixing embossed seal on the authority and further dispatch to concerned District Accounts Office. After this process, during 2002-2003 the sealed authority used to be sent to concerned District Accounts Office through registered/UMS mail by the RD Section of AG Sindh Office.

 

d)       After finalization of the pension case (or preparation of pension payment sealed authority),  case alongwith pension payment sealed authority having the stamp “payment may be made after proper identification of pensioner and production of A Certificate from Department that he/she was a bonafide employee of __________” is forwarded to concenred District Accounts Office from where pensioner desire to received pension. In case of Hyderabad, case is forwarded to Treasury at Hyderabad.

 

DISTRICT ACCOUNTS OFFICE HYDERABAD/ CONCERNED DAOs

 

a.       When any mail received including pension payment sealed authority at District Accounts Office is entered in inward register, later on put up to District Accounts Officer who marks the same to concerned Additional District Accounts Officer. Additional District Account Officer then marks and forwards the same to concerned Auditor/Accountant who marks an entry into Pension Authority register and forwards the same to concerned Auditor, who deals with the particular department.

 

b.       Auditor/Sub-Accountant maintains entry of authority in Pension Payment issue Register, the Auditor prepares personal file of the pensioner (which includes Authority, CNICs of pensioner and his identifier, Disburser’s half portion, LPC, Photograph.

 

c.       Auditor/sub-accountant checks vouchers are in proper from, stamps are affixed. He ensured that pensioner and identifier should appear in person for physical verification/identification, (clause (f), rule 172, Auditor’s duties, pension Audit section, Chapter 8, Audit Manual and Rule 329(1) of Treasury Rules of Federal government) refers. He then forwards the same to the Accountant for examining/audit of documents and physical verification of both pensioner and his identifier.”

 

8.       Admittedly there is commission of huge fraud and the ghost employees whose record is not available in the office of Education and Health Department were paid pensions and commutation through cheques in their names on the basis of false and fictitious NICs. Fraudulent amount of Rs.32.16 Million was paid to 35 ghost pensioners. From the material availbale on record, it transpired that specific role has been assigned to each of the Petitioners, which is being reproduced for the sake of convenience hereunder :-

“that the Investigation Report further reveals that Abdul Ghani Lashari (accused No.2) signed/approved 10x pension payment orders (PPOs) and monthly pension bills of fake pensioners without physical verification of pensioner, whereas according to procedure he was supposed to examine all the details of bill/PPO, physically verify but he failed to do his duty and violated the Rule 177 of Treasury Rules.

 

that the Investigation Report reveals that Ghayasuddin (accused No.3) signed/approved 25x pension payment orders (PPOs) and monthly pension bills of fake pensioners. However, according to Rules he was supposed to examine all the details of bill/PPO, physically verify pensioner but he failed to do his duty and violated the Rule 177 of Treasury Rules.

         

that the Investigation Report further reveals that Ghulam Qadir Memon (accused No.4) prepared 5x pension payment orders (PPOs) of fake pensioners without checking original NIC and physical appearance of pensioner. However, according to Rules & Regulations pensioner should appear in person in first time before the officer preparing the PPO with original NIC but he failed to do his duty and violated the Rule 172 of Auditor’s Duties Manual.

         

that the Investigation Report further reveals that Sardar Ahmed (accused No.5) prepared 17x pension payment orders (PPOs) of fake pensioners without checking original CNIC and physical appearance of pensioner. However, according to Rules & Regulations pensioner should appear in person in first time before the officer preparing the PPO with original NIC but he failed to do his duty and violated the Rule 172 of Auditor’s Duties Manual.

 

that the Investigation Report further reveals that Shamsuddin (accused No.6) prepared 13x pension payment orders (PPOs) of fake pensioners without checking original CNIC and physical appearance of pensioner. However, according to Rules & Regulations pensioner should appear in person in first time before the officer preparing the PPO with original NIC but he failed to do his duty and violated the Rule 172 of Auditor’s Duties Manual.”

 

The offence committed by the Petitioners 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.”                       

 

 

 

9.       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 Deputy Prosecutor General NAB has established that there are sufficient material/circumstances which require consideration by the Trial Court after recording of evidence. Learned Deputy Prosecutor General NAB has pointed out several documents including NIC of ghost pensioners contending that they were fake and forged ones on the basis of which an amount of Rs.32.16 was paid to ghost pensioners.

 

10.     The case law cited by the learned Counsel for the Petitioners are distinguishable to the facts and circumstances of the cases. As pointed out by the Deputy Prosecutor General NAB, the charge is to be framed and the Trial of the case is likely to be commenced. Following the dictum laid down by the Honourable Supreme Court in the case of Imtiaz Ahmed supra, which is fully attracting to the facts and circumstances of the present cases, we are of the opinion that the Petitioners have failed to make out the case of further inquiry and are not entitled to be released on bail at this stage therefore, we declined the concession of bail to the present Petitioners. However, we hereby direct the Trial Court to conclude the Trial preferably within a period of (90) days from receipt of this order without granting undue adjournments and if the Trial Court fails to complete the trial within stipulated time the Petitioners may approach to this Court for grant of bail.

    

11.     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