IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C.P.No.D- 3615 of 2016.

A/wC.P.Nos.D- 173, 195, 238, 369, 588 and 590 of 2018

 

Date

               Order with signature of Judge

 

 

                             Before:

                             Mr.JusticeNazar Akbar

                             Mr.Justice Muhammad Faisal Kamal Alam

                                                -

 

 

Petitioners:

 

1.AbdulKhaliqPahinyar

In C.P.No.D3615/2016&

Bashir Ahmed in

C.P.No.D-238/2018.             Through Mr.Nisar Ahmed

                                                Bhanbhro  Advocate,.

 

2.AbdulKhaliqMazari

C.P.No.D-173/2018,  

Khadim Hussain in

C.P.No.D- 195/2018&

Barkat Ali Bhangwar in

C.P.No.D-369/2018.             Through Mr.Wasem Ahmed                                                            Sundrani, Advocate.

 

3.SyedEssab Shah in

In C.P.No.D-588/2018

& Hakim Ali in

C.P.No.D- 590/2018.            Through Mr.AbdulBaqi Jan                                                  Kakar, Advocate.

                                               

 

Respondents.

 

Chairman NAB and ors.        Through Mr.MujeeburRehman                                                       Soomro, Special Prosecutor.

 

Date of Hearing 09th March, 2021.                

                              O R D E R.

 

NAZAR AKBAR, J- By this common order, we intend to dispose of the above captioned constitutional petitions filed by the petitioners Abdul KhaliqPanhiyar, Abdul KhaliqMazari, Khadim Hussain, Bashir Ahmed, Barkat Ali, Syed Essab Shah and Hakim Ali seeking pre-arrest bail in Reference No.12 of 2018, pending adjudication before the Accountability Court at Sukkur.

2.      It is alleged that the petitioners/accused officers/officials of Highways Division Kashmore at Kandhkot and private petitioners/accused being Government Contractors have jointly and severally committed an offence of corruption and corrupt practices in connivance with each other by executing substandard and incomplete work in various road schemes situated at District Kashmsore at Kandhkot and Jacobabad and thereafter excessive payments were allowed by the officers/officials to the contractors for which the contractors were not entitled which caused loss to the Government exchequer and gains acquired. The officials petitioners failed to exercise their lawful authority and rendered undue benefits to private petitioners/Government Contractors, which resulted loss and misappropriation of the Government funds and gains acquired by accused to the tune of Rs.3,47,59,524/-The petitioners/accused committed the offence of corruption and corrupt practice and after completing the investigation, the aforementioned reference was filed against the petitioners/accused.

3.      Learned counsel for the petitioners mainly contended that the petitioners have been implicated in this case by the NAB authorities with malafide intention and ulterior motives; that no such loss has been caused to the Government exchequer by the petitioners.  Learned counsel for the petitioners after arguing the matter at some length, submitted that though the allegations leveled against the petitioners in the reference are false but inspite of that they are ready to furnish security/surety equivalent to the extent of loss allegedly caused to Government exchequer by each of the petitioner individually as allegedly attributed to each one of them within a reasonable time.

4.      Learned Special Prosecutor NAB assisted by I.O has objected to the acceptance of such proposal even if the entire amount is secured. He has contended that in one of the cases the Honourable Court has disapproved this kind of concession at the bail stage.

5.      We have heard arguments advanced by the learned counsel for the parties and perused the material available on record.

6.      The material available on record, it reveals that the documentary evidence has already been collected by the Investigating Officer and there is no apprehension of tampering with the evidence as all the P.Ws are official witnesses. The reference has already been filed against the petitioners before the Accountability Court at Sukkur, where in the charge has been framed and some of the PWs have already been examined by the trial Court.  The petitioners are regularly attending this Court as well as trial Court and did not misuse the concession of interim pre-arrest bail extended to them. The petitioners are voluntarily furnishing security/surety of the liability amount as leveled against each one of them in the impugned Reference No.18 of 2019.The Honourable Supreme Court also granted bail to an accused on similar terms as proposed above.

 

7.     The contention of learned counsel for the NAB that the Honourable Supreme Court in the case of Rai Mohammad Khan reported in 2017 SCMR 1152 has been rebutted by learned counsel for the petitioners by placing reliance on two unreported judgments of Honourable Supreme Court passed in (1) C.P.No. 2300 of 2018 & C.P.No.1175 of 2020. In Civil Petition No.1175-K/2020   and the relevant portion of the order dated 26.11.2020 is reproduced as under:-

“We have observed  that bulk of accused nominated in the reference are enlarged on bail either due to acceptance of plea bargain or had deposited their incurred liability with the trial court. Otherwise we have been informed that as per order of Accountability Court, Sukkur dated 27.07.2020 a letter bearing No.ABL/JCD/2(20) dated 27.07.2020 from Allied Bank Limited Jacobabad Branch  was received to the trial court wherein it is submitted that DD bearing No.BBB1351295 dated 20.07.2020 amounting to Rs.34,72,100/- is genuine and the entry of the same has been made in the register in the name of trial court. It is noticed that the pre-arrest bail of co-accused  Mujeeb-ur-Rehman has been confirmed  on deposit of pay-order in civil petition No.277-K/2020 by this Court vide order dated 15.07.2020. The petitioner has already deposited his individual liability of Rs.34,72,100/- before the learned trial court and leave this case has already been granted on 07.08.2020 at Karachi Branch Registry of this Court, hence, in the interest of safe administration of criminal justice, the petitioner be released on bail subject to his furnishing bail bond in the sum of Rs.5,00,000/= with two sureties each in the like amount to the satisfaction of the learned trail court”.

 

8.    Similar view was taken by Honourable Supreme Court in judgment in the case of Mumtaz Ali v The State through Chairman NAB in C.P.No.1149-K of 2018. This judgement is reproduced below:-

“Mr.Muhammad Ashraf Kazi Senior Advocate Supreme Court, submits that the petitioner is ready and willing to deposit with the trial Court the entire amount of his liability so far determined by the prosecution.

     Syed Amjad Ali Shah learned DPG NAB present in Court waives the notice and submits that in view of the case of Shamraiz Khan v The State (2000 SCMR 157) he would have no objection for the grant of a bail to the petitioner subject to his depositing the entire amount of his liability in this case being Rs.61,79,238/- (Rupees Sixty One Lac, Seventy Nine Thousand, Two Hundred and Thirty Eight)  with  the Additional Registrar of this Court at Brach Registry Karachi.

      In these circumstances, this petition is converted into an appeal and allowed, the petitioner is admitted to bail subject to his depositing with the Additional Registrar of this Court the above amount”.

 

9.      These judgments are subsequent in time and passed by three members bench of Honourable Supreme Court whereas the reliance placed by learned counsel for NAB on the case reported in 2017 SCMR 1152 was earlier in time and the judgment is delivered by two member bench.

10.    In view of above, the interim pre-arrest bail already granted to petitioners Abdul KhaliqPahinyar, Abdul KhaliqMazari, Khadim Hussain Panhiyar, Bashir Ahmed Khan, Barkat Ali Bhangwar, Syed Essab Shah and Hakim Ali is hereby confirmed subject to depositing entire amount  of Rs.63,39,045/-, Rs.10,49,896/-Rs.12,60,894/-, Rs.15,65,973/-, Rs.25,71,137/-, Rs.44,48,846/- & Rs.18,60,056/- through pay ordersequivalent to their respective individual liabilities as mentioned in the above Reference, within a period of 15 days  and P.R Bonds in the like amount to the satisfaction of learned Trial Court. Failure whereof, the interim pre-arrest bail granted to the aforementioned petitioners shall stand recalled on expiry of 15 days from today and the petitioners will be taken into custody and remanded to jail till deposit of the above amounts.

11.    The observations made hereinabove are tentative in nature and will not influence the learned trial Court while deciding the reference on merits.

12.    The aforementioned petitions are disposed of in above terms.

 

 

                                                                                         JUDGE

                                                             JUDGE

                                                                  

 

 

 

 

 

 

 

 

 

Akber.