ORDER SHEET
IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Const. Petition
No.D-561 of 2019
|
Date |
Order with signature of Judge |
Before:-
Mr.
Justice Nazar Akbar
Mr.
Justice Muhammad Faisal Kamal Alam
09-03-2021
Mr.
Bashir Ahmed Samejo, Advocate for the petitioner
Mr.
Muhammad Zubair Malik, Special Prosecutor NAB
O R D E R
Nazar
Akbar, J:- By
this order, we intend to dispose of the above captioned constitutional petition
whereby petitioner Zafrullah seeks pre-arrest bail in Reference No.22/2018,
pending adjudication before the Accountability Court at Sukkur.
2. The allegation against petitioner/accused
Zafarullah is that he being Ex-Accountant/ T.O Finance TMA Faiz Ganj being
custodian of the record signed 30 cheques for payments to the Government
Contractors in violation of the rules in connivance with the officials/officers
of TMA and Government Contractors, as such caused loss to the exchequer to the
tune of Rs.11,476,107/-.
3. Learned Counsel for the
petitioner mainly contended that the petitioner is innocent and has falsely
been implicated in this case by the
4. On the other hand, learned
Special Prosecutor NAB Sukkur vehemently opposed for confirmation of the
interim pre-arrest bail to the petitioner and argued that the petitioner is Town Officer
of TMA Faiz Ganj, who along with co‑accused made payment through
different cheques to the contractors shown in the Reference without following the Rules; that the
petitioner/official of TMA Faiz Ganj failed to prevent financial loss to the
Government exchequer; that the
petitioner is involved in corruption and corrupt practices as defined u/s 9(a)
(iii) (iv) and (xii) punishable u/s 10 of the National Accountability
Ordinance, 1999. He lastly prayed for dismissal of the bail petition.
5. We have heard learned counsel
for the parties and perused the material available on record. It reveals from the documentary evidence that
the petitioner is involved in misuse of authority and misappropriation of
Government funds. As per record the
petitioner caused loss to the National Exchequer to the tune of Rs.11,476,107/-. It is a well-settled principle of law that at
bail stage only tentative assessment is to be made. Therefore, we are of the
view that prima-facie material is
available on record to connect petitioner for committing the offence of
corruption and corrupt practices as defined under NAB law. The contention of
learned counsel that some of the petitioners, who were accused in Reference
No.22/2018, have been granted bail is not even half-truth. The record shows
that as many as 38 co-accused have filed constitution petitions which have been
disposed of by order dated 13.03.2020 and all the petitions of the government
servants involved in alleged misappropriation of funds have been dismissed and
out of 38 accused only 5 accused who were not government servants were able to
obtain confirmation of bail on no objection given by Special Prosecutor NAB.
The other 33 co-accused have been denied bail in the following terms:-
“82. It is a well-settled principle of law that
at bail stage only tentative assessment is to be made. Therefore, we are of the
view that prima-facie sufficient
material is available on record to connect petitioners namely
Saleem Akhtar, Nisar Ahmed Jagirani, Ellahi Bux Bhanbhan, Gohar Hussain
Phulpoto, Ghulam Sarwar Shar, Aijaz Ali
Khaskheli, Syed Yateem Ali Shah, Khurheed Ahmed Shar, Khalilullah Memon, Shah
Muhammad Kalhoro, Muhammad Akram Shar, Mukhtiar Hussain Jamali, Abdul Waheed,
Shahzad Bhutto, Fahad Hussain Khaskheli, Anwar Ali Manganhar, Mumtaz Ali, Jamal
Din Shar, Imtiaz Ali Lund, Naib Ali, Sanaullah Chang, Wazir Hussain Rajper,
Abdul Rasheed Shar, Sajjad Hussain Rajput, Riaz Hussain, Abdul Qayyum, Razaque
Hussain Baladi, Mashooque Ali Rajper, Altaf Hussain, Ali Khan Rajper, Sher
Muhammad, Hadi Bux, Mehmood Ahmed Jatt, Faiz Muhammad Junejo, Naeem Akhtar,
Feroze Din Rajper, Siraj Ahmed Memon, Khair Muhammad, Shuja Muhammad, Syed
Zahid Ali Shah, Tarique Hussain Mangi, Ghulam Rasool Panhwar, Abdul Baqi
Soomro, Allandho Khan, Ghulam Murtaza, Lutuf Ali Shar, Latif Dino Khaskheli,
Gohar Hussain Phulpoto for committing the offence of corruption and corrupt
practices as defined under NAB law. Learned advocates for the petitioners have
failed to disclose any extraordinary circumstances or extreme hardship for
grant of bail to them. In this context, reliance can be placed upon
the case of Chairman, National
Accountability Bureau, Islamabad through Prosecutor-General Accountability,
Islamabad v. Mian Muhammad Nawaz Sharif and 2 others (PLD 2019 Supreme Court
445) wherein Hon’ble Supreme Court of Pakistan has held that:-
“iv) With reference to many a precedent case a
Larger Bench of this Court has clarified in the case of Tallat Ishaq v.
National Accountability Bureau, etc. (Civil Petition No. 632 of 2019 decided on
01.10.2018) that in cases under the National Accountability Ordinance, 1999
bail may be granted through exercise of Constitutional jurisdiction of a High
Court only in extraordinary circumstances and in cases of extreme hardship but
in the present cases no such extraordinary circumstance or hardship had been
referred to by the High Court in the impugned judgments passed by it.”
83.
No mala fide or ill will has
been pointed-out against the investigating officer or NAB authorities that the
petitioners have falsely been involved
in this case, which is a requirement for the grant of pre-arrest bail.
In this regard, we are fortified with the case-law of Hon’ble Supreme Court of
Pakistan RANA ABDUL KHALIQ vs. The State (2019 SCMR 1129) wherein
the Hon’ble 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 considerations of malafide, ulterior
motive or abuse of process of law."
84. Learned advocates counsel for the
petitioners have failed to make-out a case for grant of pre-arrest /
post-arrest bail to the aforesaid petitioners. Accordingly, their bail
petitions stand dismissed and orders of this Court granting interim pre-arrest
bail to said petitioners are hereby recalled and post-arrest bail of
the petitioner Ayaz Hussain Odho in petition No.D-349/2019 also stands
dismissed.”
6. Therefore, rule of consistency
does not allow this court to confirm bail of the petitioner rather by applying the
rule his petition is dismissed. Accordingly, instant bail petition stands
dismissed and orders of this Court granting interim pre-arrest bail to
petitioner is hereby recalled. However, at the request of petitioner, who was
on interim bail, only seven days this order will remain inoperative and the NAB
authorities exactly on 16.3.2021 or immediately thereafter should arrest the petitioner.
This concession is being given to him on the statement at the bar that some of
the petitioners who are co-accused in Reference No.22/2018 have already
approached the Hon’ble Supreme Court.
7. The observations made
hereinabove are tentative in nature and will not influence the learned trial
Court while deciding the reference on merits.
8. The captioned petition is
disposed of in above terms.
JUDGE
JUDGE
Suleman Khan/PA