IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C.P.No.D- 1502 of 2017.

A/w D- 299, 585, 1537, 1615, 1671 &2392 of 2017.

C.P. Nos. D-1396, 1929& 1930 of 2018.

Date	Order with signature of Judge

Before:

Mr.JusticeNazar Akbar

Mr.Justice Muhammad Faisal Kamal Alam

02-03-2021.

Mr.Mahfooz Ahmed Awan Advocate for petitioners in CP No.D- 585 & 1502 of 2017.

Mr.HamayoonShaikh Advocate for petitioners in C.P.No.D- 1516 & 2392 of 2017.

Mr.Dareshani Ali Hyder Ada Advocate for petitioner in C.P.No. D – 1537 of 2017.

Mr.Qurban Ali Malano Advocate for petitioners in C.P.No. D - 299 & 1671 of 2017.

Mr.Javed Ahmed Soomro Advocate for petitioner in C.P.No.D- 1396 of 2018.

Mr.Wazeer Hussain Khoso Advocate for petitioner in C.P.No.D- 1029 of 2018.

Mr.Khan Muhammad Sangi Advocate for petitioners in C.P.No.D- 1930 of 2018.

Mr.MuhammadZubair Malik SP NAB.

Petitioners Abdul Hameed Khan Pathan, Khadim Hussain Jamali, ShahidHameedPathan, Shahnawaz, Shahzado, Niaz Hussain,Ayaz Ahmed Soomro, Ghulam Muhammad Shahliani& Mir Gohar Ali Shahliani, present on interim pre-arrest bail while petitioners Asif Ali and Rameez Ali Thaheem are in custody.

ORDER.

By this common order, we intend to dispose of the above captioned constitutional petitions filed by the petitioners Abdul Hameed Khan Pathan, Khadim Hussain Jamali, ShahidHameedPathan, Shahnawaz, Shahzado, Niaz Hussain, Ayaz Ahmed Soomro& Mir Gohar Ali Shahlianiseeking pre-arrest bailand two other petitioners Asif Ali and Rameez Ali Thaheem are seeking post arrest bail in Reference No.01 of 2017, pending adjudication before the Accountability Court at Sukkur.

2. It is alleged that the official petitioners/accused No.1 to 4 acted in furtherance of conspiracy and in connivance of each other, have misused their authorities in order to gain benefits and misappropriated the Government Funds and failed to exercise their authorities to prevent loss to the exchequer and rendered undue benefit to private petitioners/accused No.5 to 13 to the tune of Rs.197,821,020/- On the basis of findings of inquiry, the complaint was converted into an investigation and was authorized to the I.O by the D.G NAB for conducting investigation. 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 petitioner contended that individual liability of the petitioners as per interim challan was higher and during the trial, which is pending since 2017, the liability of the each petitioner at the time of supplementary challan was reduced compared to the original claim against individual petitioner. In this regard learned counsel have referred to connectedC.P.No.D – 1930 of 2018 in which areport called by the Accountability Court is available as annexure “G” showing individual liabilities of the petitioners. The said report was filed in September, 2019 before the Accountability Court and for the purpose of deciding the instant petitions, its relevant para-9 is reproduced as under:-

9. In order to avoid duplication while recovering the loss through Plea Bargain u/s 25(b) of NAO, 1999, the individual liability of all the accused persons are hereby re-distributed keeping in view the role of each accused person and recoveries made through PB so far. In this regard, a fresh individual liability chart is prepared wherein the individual liability of each accused person has been determined for kind perusal of this Hon’ble Court. The chart is supported by separate calculations for the total payments received by each contractor and its distribution among the officers / officials, contractor himself, facilitator and beneficiary accused persons. Fresh liability of accused persons are as under:-

S.No.	Name & Designation of accused	Individual Liability as per Interim Reference	Individual liability as per Supplementary Reference
1	Abdul HameedPathan (Administrator)	53,403,598	46,468,363
2	ShahzadoKhokhar (Engineer)	18,202,765	15,428,671
3	RameezThaheem (Accounts Officer)	21,418,836	17,959,216
4	Javed Ahmed Khuhro (Accounts Officer)	13,781,996	13,080,474
5	Khadim Hussain (Govt. Contractor)	52,863,727	48,964,200
6	Mumtaz Ali (Govt. Contractor)	1,631,473	1,631,473
7	Ayaz Ahmed Soomro (Govt. Contractor)	3,710,613	3,710,612
8	Asif Ali (Govt. Contractor)	5,201,883	2,600,941
9	Sher Ali (Govt. Contractor)	1,169,735	1,169,735
10	Niaz Hussain (Govt. Contractor)	9,627,795	2,843,818
11	Fayaz Ali (Govt. Contractor)	2,636,256	1,318,128
12	Shahnawaz (Govt. Contractor)	14,172,347	8,803,386
13	ShahidHameedPathan S/o Abdul HameedPathan (Administrator)	10,620,800	10,737,921
14	Ghulam Muhammad Shahliani, Ex-MPA	These accused persons were nominated in the supplementary Reference	7,347,755
15	Mir Ali Nawaz Shahliani		8,614,790
16	Mir Gohar Ali Shahliani		7,880,320
17	Muhammad Ismail		---
18	Allah Warayo		738,780
Total		197,821,024	199,298,583

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 exchequerby 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 thatin 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. After going through 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 case 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.01 of 2017.The Honourable Supreme Court also granted bail to an accused on similar terms as discussed 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 (2017 SCMR 1152) 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 in C.P.No.1175-K/2020by Honourable Supreme Court of Pakistan.

10. In view of above, the interim pre-arrest bail already granted to petitioners Abdul Hameed Khan, Khadim Hussain ShahidHameedPathan, Shahnawaz, Shahzado, Niaz Hussain,Ayaz Ahmed, Ghulam Muhammad & Mir Gohar Ali Shahliani is hereby confirmed subject to depositing entire amount equivalent to their respective liabilities within a period of 15 days as per their individual liability mentioned in Para-9 of the report reproduced in Para 3 above by each of the petitioners 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 liability amount against their individual respectively. Similarly, petitioners Rameez Ali Thaheem and Asif Ali are admitted to post arrest bail subject to depositing amount of Rs.17,959,216/- and Rs.2,600,941/- respectively mentioned against them.

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

Akber.

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.