IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Present:
Mr. Justice NaimatullahPhulpoto.
Mr. Justice Zulfiqar Ali Sangi
CP No. D- 1653 of 2019
Irshad Ahmed Gopang Vs. NAB through its Chairman and others
CP No. D- 1670 of 2019
HabibullahShaikh Vs. The State through NAB.
CP No. D- 1671 of 2019
Jagdesh Kumar Waleecha Vs.The State through Chairman NAB.
CP No. D- 1672 of 2019
GhulamSiddiqueSoomro Vs.The State through Chairman NAB.
CP No. D- 1673 of 2019
Nazeer Ahmed Abro Vs.The State through Chairman NAB.
CP No. D- 1675 of 2019
Azad Ali Bahrani (Custody)Vs. The NAB and others.
CP No. D- 1699 of 2018
Abdul KarimMemon Vs. Chairman NAB & another.
CP No. D- 1705 of 2019
Aijaz Ali Memon Vs. The State through NAB & others.
CP No. D- 1706 of 2019
Abdul MajidMemon Vs. The State through NAB & others.
CP No. D- 1714 of 2019
AnjumNaveedLarikVs.The State through Chairman NAB.
CP No. D- 1721 of 2019
Shahid Ali Shaikh Vs. NAB through its Chairman &others.
CP No. D- 1772 of 2019
Mujeeb-ur-RehmanVs. The Federation of Pakistan throughChairman NAB &others
CP No. D- 1755 of 2019
Sikander Ali Veesar Vs. The NAB through its Chairman.
CP No. D- 200 of 2020
Zulfiqar Ali Jakhrani Vs. Federation of Pakistan & others.
Date of Hearing : 11.02.2020 & 12.02.2020
Date of Announcement : 05.03.2020
Mr. Abdul GaffarSoomro, advocate for petitioners in CP No. D- 1670, 1671, 1672,1673, and 1714 of 2019
Mr.Nisra Ahmed Bhambro, advocate for petitioners in CP No. D-1755,1772, and 1675 of 2019.
Mr. Mukesh Kumar G Karara, advocate for petitioners in CP No. D- 1705 and 1706 of 2019.
Mr. Ali Hyder Ada, advocate for petitioners in CP No. D- 200 of 2020.
Mr.Qurban Ali Malano, advocate for petitioners in CP No. D- 1653 of 2019.
Mr. Ali RazaBaloch, advocate for petitioners in CP No. D- 1699 of 2018.
Mr. Mushtaque Ali Shahani, advocate for petitioners in CP No.-D 1721 of 2019
Mr. Muhammad Zubair Malik, Special Prosecutor NAB.
O R D E R
ZULFIQAR ALI SANGI, J.- All the above petitions are emanating from Reference No. 15 of 2019 pending against petitioners and others before Accountability Court Sukkurwherein all the petitioners are seeking bail before arrest, except petitioner Azad Ali Bahrani who is in custody and he is seeking his post-arrest bail.
2. Brief facts of the case as alleged in the subject reference are that the NAB authoritiesreceived complaint against officials/officers of Education Works Division, Jacobabad and others in relation to their involvement in embezzlement of funds by allowing bogus payments to bogus firms/ contractors in different schemes, an inquiry was authorized which was subsequently converted into investigation and finally culminated in filing of subject reference against petitioners and co-accused. According to the NAB, the accused/ petitioners and others were involved in processing/ withdrawing illegal, unlawful, unjustified bogus payment of the schemes of Annual Development Program (ADP) and Peoples Works Program-II (PWP-II) and committed the alleged offence by causing huge loss to the NatinonalExcheqer.
03. We have heard learned counsel for the petitioners, learned Special Prosecutor for the NAB and perused the material available on record for deciding entitlement of petitioners to the concession of pre-arrest bail and post-arrest bail with their able assistance.
04. Mr. Nisar Ahmed Bhanbhro, Advocate, contended that allegation against Petitioners who are the accused Nos. 23 and 24 in the Reference are that they are contractors, they had received the cheque from the officials and deposited partial amount with the Petrol Pump authorities; that these petitioners are contractors and no other incriminating material/evidence has been collected against them during theinvestigation by the NAB. He submits that Primary Schools under execution, which are subject matter in the Reference are 31 in numbers, Middle School are 04 and Single Section High school are 07 in numbers and upgrade Middle Schools to High Schools are 19 in numbers and Rehabilitation of schools are 13 in numbers, total 70 schools were under execution and as per report of technical expert final payment was withheld; that except technical expert report, there was nothing against the petitioners; that persons who made complaint against the petitioners they were not examined by the Investigation Officer U/S 161Cr.P.C. Mr. Bhambro further contended that complaint against the petitioners was managed one; As regards the mala fide on the part of NAB he contended that NAB has conducted an enquiry against the petitioners due to political influence. Accused GhulamAbbass is in custody being Chairman of Municipal Corporation Jacob Abad; that inquiry was authorized on 12.12.2017, it was converted into the investigation on 13.12.2019 and 161 Cr.P.C statement of AsimQureshi Technical Expert was recorded before conversion of inquiry into investigation; that Statement of Accountant was also recorded before conversion of inquiry into the investigation. He contended that no witness has been examined by the NAB after conversion of inquiry into investigation for collecting any incriminating material against the petitioners; that investigation was defective and the material collected during investigation was insufficient; that Complaints with the NAB pertains to the year 2014-2015 and so far the complainants were concerned those complainants were not examined by the NAB after conversion of inquiry into investigation and those schemes were not checked at ground. In the Post arrest petition of Petitioner, Azad Ali submits that hewas arrested during the investigation and is in jail.; that Petitioner MujeeburRehman is not the proprietor of two companies, He is only the proprietor of one company. The allegation against petitioner MujeeburRehmanis that he got a cheque of Rs. 62,00,000/- (Sixty two lacs) but in his account transaction amount was quite less than the mentioned above; that total transaction in the account of MujeeburRehman was not more than 15,000,00/- (Fifteen lacs) and the remaining amount is shown in the Reference was not justified; He submitted for the Petitioner Sikandar Alithat he is the Banker and the allegation against him are that he processed chequesin the Bank being Bank employee; that there is no allegation of personal gain; that interference of the NAB with the employees of the Bank was unjustified and without any legal sanction, The bank officials were not beneficiaries. At the most, it was the case of negligence. Reference has been initiated by the NAB with mala fide intention.
05. Mr. Mukesh Kumar G. KararaAdvocate for accused No.1 in the Reference namely Aijaz AliMemon Executive Engineer Education Works Division Jacob Abad contended that he was posted at Jacob Abad on 08.06.2015 and transferred on 24.11.2016; that NAB has leveled two allegations, one was that scheme was not in existence at site and second was for forwarding of 61 cheques. Counsel for accused AijazAli Memon referred to the report of Technical Expert and argued that schemes were in existence. As regards to the second contention, it is argued that there is mala fide on the part of NAB to initiate inquiry in the matter in which schemes are already running; that no complaint was filed against the petitioner Aijaz Ali Memon by any person; that there were three complainants but in those complaints petitioner Aijaz Ali was not named; that there is no allegation of personal monetary gain against the petitoner; that Muhammad Ali Depar was XEN at relevant time who expiredand the NAB finding no other way involved Executive Engineer Aijaz AliMemon.Mr. Mukesh Kumar learned counsel for petitioner /accused Abdul Majid in C.P No. D-1706/2019 contended that petitioner is contractor and was assigned duty of electrification of school building; that the liability has been calculated against the petitioner to Rs.1,79,000/- and according to NAB aforesaid amount has been paid to him in excess but as the scheme is running, he is prepared to complete it within three (03) days.
06. Mr. Mushtaque Ahmed Shahani Advocate for petitioner Shahid Ali(Division Accounts Officer) in C.P No.D-1721/2019 contended that he forwarded 35 payment Vouchers without pre-audit; that 1st Complainant made by Muhammad Ayoob Behan who was President of Highway Labour Union and his complaint was based on mala fide; that 2ndComplaint made by Sikandar Ali who was Social Worker andthe 3rd complaint was made by Muhammad Moosa, he was also Social worker, he submits that all the three complaints are based on malafides; that the Vouchers were not confronted to the petitioner during investigation for his explanation; that petitioner was posted at Jacob Abad only for one month and was not the beneficiary. Lastly, he contended that NAB has joined Accountant/ Petitioner as accused for the mala fide reasons without any substance.
07. Mr. Abdul GhaffarSoomro Advocate for Bank officers/petitioners HabibullahShaikh, AnjumNaveedLarik, Jagdesh Kumar, Nazeer Ahmed, and GhulamSiddiqueSoomro contended that there are general allegations against bankers; that no higher officials of the Bank was examined by the NAB in order to examine the fault or criminal liability against the Bankers; that all the beneficiaries had submitted cheques voluntarily and there was no fault on the part of Bankers; that Bankers/petitioners were not beneficiaries in any manner; that no loss was caused by them to the National Exchequer; that technical report showed final payment was withheld; that except for technical expert, there was nothing against the petitioners in the statements of the witnesses recorded U/S 161 Cr.P.C; Lastly, he contended that the person who had made complaint against the petitioners were not examined by the Investigation Officer during the course of investigation.
08. Mr. Qurban Ali Malano, counsel for petitioner Irshad Ahmed Gopangcontended that allegations are generalized in the Reference against him; that he was contractor and acted according to law; that nowhere it is mentioned that which amount has been embezzled by accused No.15 in the reference; that amount of plea bargain is also mentioned in the Reference without deduction of that amount a reference has been filed by the NAB. Lastly, he contended that accused Irshad Ahmed has joined the investigation and no more required for the same purpose.
09. Mr. Ali RazaBaloch, counsel for petitioner Abdul KarimMemon contended that he was posted as Divisional Accounts Officer from the period in between 2013 to March 2016; that he was not signing authority of the cheques; that there is nothing on the record that he was beneficiary in any manner; that in fact, it was the responsibility of Sub-Engineers to have verified the bills before sending to the Divisional Accounts Officer, but they have not been joined as accused in the Reference; that all the schemes were ongoing and no new scheme was approved in his period because of shortage of funds; that it was the duty of the Executive Engineer to have verified every scheme before signing the cheques; that according to the new Ordinance, petitioner acted in good faith; that there is nothing on record that his sources are beyond limits. Lastly, he prayed for the confirmation of bail.
10. Mr. Muhammad Zubair Malik, Special Prosecutor NAB argued that this Reference is against officials of the Education Works Department, District Accounts Officer as well as contractors; that they have been joined as accused in the Reference as they committed the offence punishable under the NAO, 1997; that there was no record in the offices of Assistant Engineers, Education Works, Sub-Division Thull, and Jacobabad, but bogus bills / vouchers were prepared by the officials of Education Works Department and Treasury Office and the embezzled the huge amount; He contended regarding bankers’ role, it is argued by Special Prosecutor NAB that cheques were Government cheques and those cheques were cross cheques in the names of some particular persons, but officials of banks encashed in the names of some other persons though chequeswere not issued in their favour; that bills were prepared by Aijaz Ali Memon Executive Engineer Education Works Division Jacob Abad for an amount of Rs. 3,75,015/- so also other 94 bills which carry signatures of said Executive Engineer Education Works Division Jacobabad; that District Accounts Officer prepared the cheques but his role is formal and he was not joined as accused; that infact pre-auditing of the bills was the function of the Divisional Accounts Officer who has been joined as accused Nos. 2 and 3, their names are Abdul Kareem Memon and Shahid Ali; that on several Chequesat the left side the signature of petitioner Shahid Ali and on the right side there is signature of petitioner Aijaz Ali Memon is available; that all the cheques and bills have been signed by petitioner Shahid Ali; that these accused had prepared the bills, signed and pre-audited the same; that Petitioner Abdul Kareem had also signed the bills, there are details of the bills which were credited in the accounts of some persons instead of Payees Account and showed some cheques before the court, the cheque which was issued in favor of Abdul Khalique, Government Contractor but the same was deposited in the account of Mujeeb-ur-Rehman instead of Abdul Khalique Government Contractor; that Bankers/PetitioenrsLarik and Valecha have signed upon Deposit Slip which also reflected fromcheques which were issued by the Education Works Department pre-audited in favor of some other persons and were deposited in the Account of some other person.He argued in C.P No.D-200/2020 with regards to petitioner Zulifqar Ali Jakhrani that he has drawn the amount of fake cheques and the bills prepared by him were disowned by the Education Department.He further contended that no work at the site has been done and all the bills are fake; that still charge has not been framed andduring the investigation,only two accused Azad Ali and GhulamAbass were arrested while other accused applied for bail. He submits that officers could not point out the schools and particularly did not join the office of NAB; that fake bills were prepared that is why the building department could not show the concerned schools. He submits that during investigation petitioners AijazAli Memon, Abdul Kareem, and Majid applied for pre-arrest bail and got interim bail, remaining all petitioners have applied for pre-arrest bail except petitioner Azad Ali after filing of the Reference. Lastly, he contended that during investigation 22 accused persons entered into plea-bargain and some amount was recovered from them.
11. It is a well-settledprinciple of law that deeper appreciation of evidence is not permissible at the stage of bail and the material is to be assessed tentatively. We scan the material available tentatively and found that during the investigation the investigation officer collected oral as well as documentary evidence against the petitioners. The role against the petitioner AijazAli Memon is that he remained as XEN, Education Works Division Jacobabad and forwarded the payment vouchers/bills after physical verification of schemes the same were pre-audited by District Account officers and forwarded to the DAO for disbursement of the funds. The petitioner Aijaz Ali Memon forwarded 61 payment vouchers/bills fraudulently, amounting to Rs. 29,626,844/- without award of any scheme and his individual liability was calculated Rs. 6,860,595.5/- for which he has failed to submit reasonable justification before the investigation officer. The petitioner Abdul KarimMemon remained as Divisional Accounts Officer, Education Work Division Jacobabad and he forwarded the amount of bills from his ID allocated to him, he forwarded 98 payment vouchers/Bills fraudulently, amount to Rs. 94,427,010/- without conducting pre-audit, the award of the scheme and mentioning the name of scheme, M.B and page No. of M.B, in which his individual labiality was calculated as Rs. 20718499.88/- for which he has not submitted reasonable justification. The role against petitioner Shahid Ali is that he remains as Divisional Account Officer and forwarded the amount from his ID allocated to him, he forwarded 35 payments vouchers/Bills fraudulently, amounting to Rs. 21,076,371/- without conducting pre-audit, the award of the scheme and mentioning the name of scheme, M.B and page No. of M.B, and his individual liability of Rs. 4,713,539.25/- was calculated for which he has not given satisfactory justification before the investigation officer. The petitioner Abdul Majid is contractor and proprietor of M/S A.M Memon and brothers he got processed 02 fake/managed payment vouchers/Bills to Rs. 400,000/- in convince with official of Education Works Division Jacobabad and his individual liability of Rs. 179,000 was calculated. The Petitioner Irshad Ahmed is contractor and proprietor of Shan construction Company he got processed 06 fake/managed payment vouchers/Bills amounting to Rs. 3,025,015/- in connivance with official of Education Works Division Jacobabad and his individual liability was calculated as Rs. 1,353,694.5/- for which he has not furnished a satisfactory explanation to the investigation officer. The Petitioner Zulfiqar Ali is contractor and proprietor of M/S Zulfiqar Ali Jakhrani he got processed 05 fake/managed payment vouchers/Bills amounting to Rs. 1,473,000/- in connivance with official of Education Works Division Jacobabad and his individual liability was calculated as Rs. 659,167.5/- for which he has not furnished a satisfactory explanation to the investigation officer. The Petitioner Azad Aliwho is in custody and applied for post-arrest bail and is contractor and proprietor of M/S A.R.J Enterprises, he got processed 09 fake/managed payment vouchers/Bills amounting to Rs. 17,220,000/- in connivance with official of Education Works Division Jacobabad and he after receiving the corruption money immediately transferred Rs. 4,400,000/- to TOTAL PARCO against outstanding liability of Patrol Pump of accused Mir GhulamAbbass and also transferred Rs. 4,296,000/- in an account of accused Mir GhulamAbbass without any consideration and justification. Furthermore, one cheque was fraudulently processed by Bank Officers of ABL Jacobabad in the account of Petitioner which was issued in favour of M/S Subz Ali Brohi by District Account Office and committed misappropriation, his liability was calculated as Rs. 3,472,100.5/- for which he has not furnished a satisfactory explanation to the investigation officer. The Petitioner Mujeeb-ur-Rehman is contractor and proprietor of M/S Mujeeb-ur-Rehman and Riaz& Co. construction Company he got processed 11 fake/managed payment vouchers/Bills amounting to Rs. 6,966,673/- in connivance with the official of Education Works Division Jacobabad, further after receiving said corruption money he immediately transferred Rs. 1,800,00/- in the account of accused Mir GhulamAbbass without any consideration and justification. It is also alleged that 02 cheques were processed by Bank Official of N.B.P, Quaid-e-Azam road branch, Jacobabad and 02 cheques processed by Bank officials of ABL, Jacobabad branch fraudulently in his account which was not issued in his favourand his individual liability was calculated as Rs. 2,244,586.5/- for which he has not furnished a satisfactory explanation to the investigation officer. The Petitioner AnjumNaveed being Ex.BSO, ABL Jacobabad branch along with accused Jagdesh Kumar Valecha working as Ex. BSM, ABL Jacobabad branch processed 03 cheques amounting to Rs. 1,656,200/- in the accounts of beneficiaries other than the persons who’s favourcheques were issued and by misusing his authority and caused loss to the National exchequer his individual liability was calculated as Rs. 207,025/-. The Petitioner Jagdesh Kumar Valecha working as Ex. BSM, ABL Jacobabad branch along with accused AnjumNaveedEx.BSO, ABL Jacobabad branch processed 03 cheques amounting to Rs. 1,656,200/- in the accounts of beneficiaries other than the persons who’s favourcheques were issued and by misusing his authority and caused loss to the National exchequer, his individual liability was calculated as Rs. 207,025/-.The Petitioner GhulamSiddiqueSoomro being Ex.BSO, ABL Jacobabad branch along with accused HabibullahShaikh working as Ex. BSM, ABL Jacobabad branch processed 01cheques amounting to Rs. 375,575/- in the accounts of beneficiaries other than the persons who’s favourcheques were issued and by misusing his authority and caused loss to the National exchequer his individual liability was calculated as Rs. 46,946.875/-.The Petitioner Nazeer Ahmed Abro being Ex.BSO, ABL Jacobabad branch along with accused HabibullahShaikh working as Ex. BSM, ABL Jacobabad branch processed 01 cheque amounting to Rs. 2,013,750/- in the accounts of beneficiaries other than the persons who’s favourcheques were issued and by misusing his authority and caused loss to the National exchequer his individual liability was calculated as Rs. 139,843.75/-.The Petitioner HabibullahShaikh being Ex.BSM, ABL Jacobabad branch along with accused GhulamSiddiqueSoomro working as Ex. BSO, ABL Jacobabad branch and accused Nazeer Ahmed Abro Ex. BSO ABL Jacobabad branch processed 02 cheques amounting to Rs. 2,389,325/- in the accounts of beneficiaries other than the persons who’s favourcheques were issued and by misusing his authority and caused loss to the National exchequer his individual liability was calculated as Rs. 186,790.625/-.The Petitioner Sikandar Ali being officer Grade-I NBP Quaid-e-Azam road Jacobabad processed 02 chequesamounting to Rs. 1,800,000/- in the accounts of beneficiaries other than the persons who’s favourcheques were issued and by misusing his authority and caused loss to the National exchequer his individual liability was calculated as Rs. 452,500/-.
12. The record further shows that during investigation accused 1. Abdul Karim S/O Kaloo Khan paid the amount of Rs. 44,000/-, 2. Muneer Ahmed S/o Abdul Majeedpaid amount of Rs. 113,125/-, 3. Muhammad Ayoub S/o Allahdadpaid amount of Rs. 223,750/-, 4. Muhammad Hayat Manjho S/O Imam Bux paid amount of Rs. 55,043/-, 5. Shabir Ahmed S/o Ghazi Khan paid amount of Rs. 313,250/-, 6. Syed GhulamShabir Shah S/o Syed Ali Asgar Shah paid amount of Rs. 113,750/-, 7. Mohsin Ali S/o Zubair Ali paid amount of Rs. 113.125/-, 8. Abdul Aziz S/O Muhammad Moosa paid the amount of Rs. 227,500/-, 9. Masroor Ahmed S/O Noor Ahmed Brohi paid the amount of Rs. 223,750/-, 10. Jawad Ali S/o Qadeer Ahmed paid the amount of Rs. 190,188/-, 11. Altaf Ahmed S/O PirBux paid amount of Rs. 447500/-, 12. Muhammad Younis S/o Arbar Ali paid amount of Rs. 358,000/-, 13. Zulfiqar Ali S/O Rabban Khan paid amount of Rs. 536,250/-, 14. Ghazi Khan S/O KhudaBux paid amount of Rs. 899715/-, 15. Muhammad Sharif S/o Janghan Khan paid amount of Rs. 227,500/-, 16. Abdul Nabi S/o Suhrab paid amount of Rs. 102791/-, 17. Niaz Ahmed S/o Zangi Khan paid amount of Rs. 452500/-, 18. Muhbat Khan S/O MaulaBuxpaid amount of Rs. 628750/-, 19. Aamir Ali S/O Aashique Ali Jamali paid amount of Rs. 678750/-, 20. Wakeel Ahmed S/o Wazeer Khan paid amount of Rs. 649505/-, 21. GhulamRabbani S/O Din Muhammad paid amount of Rs. 44750/-, 22. Shahid Ali S/o PirBuxpaid amount of Rs. 615000/-, Total 72,58,492/-throughPlea bargaining and the same was accepted therefore they were not sent-up for trial, which also confirmed that the huge amount was misappropriated by the petitioners along with other accused persons and they caused loss to the national exchequer.
13. At the outset, it observed that the above petitioners are seeking pre-arrest bail except for petitioner Azad Ali Bakhrani who is seeking post-arrest bail, therefore, before considering the cases of petitioners for such a relief, we may observe that the conditions for grant of pre-arrest and post-arrest bail are quite different as set out in the case of Rana Mohammed Arshad v. Muhammad Rafique (PLD 2009 SC 427).
14. No mala fide on the part of NAB officials is pointed out by the learned counsel. It is now settled law that pre-arrest bail is extraordinary relief and is only available in cases where there has been mala fide on the part of the complainant or the investigating agency. In this regard, reference may be made to the case of Rana Mohammed Arshad v. Muhammad Rafique (PLD 2009 SC 427) andMukhtar Ahmad v. The State and others (2016 SCMR 2064).In the case of Abdul Khaliq V. State ( 2019 SCMR 1129 ), the Honourable Supreme Court of Pakistan has held as under:-
“Grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post-arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation----the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires consideration of malafide, ulterior motive or abuse of process of law.”
15. In the present case some officials prepared bogus vouchers/ bills and some kept note of pre-audit and issued cheques and then released the huge amount to the contractors and the bankers allowed the persons for receiving the amount for which they were not authorized to receivethe same as the cheques were not in their names and were cross cheques of Government Deportment. We note that the financial loss to society from white-collar crimes (like present crime) is probably greater than the financial loss from burglaries, robberies, and larcenies committed by the persons of the lower socio-economic class. It is high time to deter those from committing acts of corruption and to save the economic structure of our country which is already facing a serious financial situation.
16. Lastly, we may observe that while deciding bail petitions an elaborate sifting of evidence cannot be made but only tentative assessment is required, and a cursory glance of the record shows that all the petitioners in connivance with the official of the Education Works, Division, Jacobabad and the Bankers have caused huge loss to the Government exchequer, therefore, their pre-arrest bail is dismissed. Resultantly, the interim pre-arrest bail granted to them is recalled. As regards to the case of petitioner Azad Ali, we observe that he is also not entitled for grant of his post-arrest bail for the above discussed reasons. Therefore the same is also dismissed. Since the petitioner Azad Ali is behind the bar, learned Accountability Court Sukkur is directed to conclude the trial within three months after receiving this order and compliance report be submitted through Additional Registrar of this Court.
17. The observations made hereinabove are tentative in nature and shall not prejudice the right of either party at trial.
JUDGE
JUDGE