ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. D–1479 of 2020

a/w C. Ps. No. D–1480, 1481, 1482 of 2020

and CP No.D-130 of 2021

Date of hearing

Order with signature of Judge

For bail before arrest

For hearing of main case

16-03-2021

M/s. Nisar Ahmed Bhanbhro, Dareshani Ali Haider Ada, Barrister Nouroz K. Bijarani, G. M.Bhutto Advocates for the Petitioners in all petitions

Mr. Muhammad Zubair Malik, Special Prosecutor NAB.

.-.-.-.-.-.-.-.-.-.-

Nazar Akbar, J: By this common order, we intend to dispose of the above captioned 05 Constitutional Petitions filed by the Petitioners Sundar Khan, Saddique Ali Laghari, Mir Ashraf Ali Khan Bijarani, Iltaf Hussain (son of Miandad), Bashir Ahmed, Imtiaz Ali, Azharuddin, Sikander Ali Chandio and Iltaf Hussain (son of Abdul Karim Khan) who are seeking pre-arrest bail in Reference No.25 of 2020, pending adjudication before the Accountability Court at Sukkur.

2. Briefly stated the facts of the Reference are that the officers / officials of TMA Tangwani, District Kashmore at Kandhkot and others, during financial years 2008-09 to 2012-13, are involved in illegal payment on account of contingency/quotation work in violation of all codal formalities as well as no record of payment were maintained which caused loss to the exchequer to the tune of Rs.13,02,64,724/- (Rupees thirteen crore two lacs sixty four thousand seven hundred and twenty four). Therefore, the Petitioners /accused committed the offence of corruption and corrupt practices, and after completing the investigation, Reference No.25/2020 was filed against them.

3. Learned counsel for the Petitioners mainly contended that the Petitioners have been implicated in this case by NAB authorities with mala fide 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 deposit an amount equivalent to the extent of loss allegedly caused to Government exchequer by each of the Petitioner individually as allegedly attributed to each of them in the Reference within a reasonable time.

4. Learned Special Prosecutor NAB 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 Hon’ble Supreme 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 perusal of material available on record 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, wherein the charge has been framed and some of the P.Ws have already been examined. The Petitioners are regularly attending this Court as well as learned Trial Court and did not misuse the concession of interim pre-arrest bail extended to them. The Petitioners are voluntarily ready to deposit the liability amount as leveled against each of them in the impugned Reference No.25 of 2020. The Hon’ble Supreme Court has also granted bail to accused on similar terms as discussed below.

7. The contention of learned Special Prosecutor NAB that the Hon’ble Supreme Court in the case of Rai Muhammad Khan v. NAB through Chairman and others (2017 SCMR 1152) has disapproved this offer has been rebutted by learned counsel for the Petitioners by placing reliance on two unreported Judgments / Orders of Hon’ble Supreme Court passed viz. (i) C.P.No. 2300 of 2018 and (ii) C.P.No.1175-K of 2020 wherein the accused on depositing entire amount of alleged loss attributed to the accused. The relevant portion of the Order dated 26-11-2020 passed in Civil Petition No.1175-K of 2020, is reproduced herein below:

“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 Hon’ble Supreme Court in the case of Mumtaz Ali v. The State through Chairman NAB (C.P.No.1149-K of 2018). The Order 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 Orders / Judgments are subsequent in time and passed by three Member Bench of Hon’ble Supreme Court, whereas, the reliance placed by learned Special Prosecutor NAB on the case of Rai Muhammad Khan (supra) was earlier in time and the Judgment is delivered by two Member Bench.

10. The Petitioners are already on interim bail before arrest, who have agreed with the proposition based on the authoritative judgments of the Hon’ble Supreme Court, that the entire amount of loss allegedly caused by them shall be deposited by them in Court.

11. In view of above, the interim pre-arrest bail already granted to Petitioners is hereby confirmed subject to depositing entire amount equivalent to their respective individual liabilities mentioned in the Reference through pay orders as follows:

Petitioner’s Name	Liability	Petitioner’s Name	Liability
Sundar Khan	Rs.4,969,297/- Rs.32,249,561/-	Saddique Ali Laghari	Rs.12,993,686/-
Mir Ashraf Ali Khan Bijarani	Rs.316,619/-	Iltaf Hussain son of Miandad	Rs.41,325,305/-
Bashir Ahmed	Rs.1,402,218/-	Imtiaz Ali	Rs.271,961/-
Azharuddin	Rs.8,046,748 /-	Sikandar Ali Chandio	Rs.6,863,403/-
Iltaf Hussain son of Abdul Karim Khan	Rs.10,791,012/-

and P.R bonds in the like amount to the satisfaction of learned Trial Court within a period of fifteen (15) days. Failure whereof, the interim pre-arrest bail granted to the aforementioned Petitioners shall stand recalled on expiry of fifteen (15) days from today and the defaulting Petitioner(s) will be taken into custody and remanded to jail till depositing of the amount against their individual liability, respectively.

12. The observations made hereinabove are tentative in nature and will not influence the learned Trial Court while deciding the Reference on merits.

13. The aforementioned Petitions are disposed of in above terms. Office is directed to place a signed copy of this order in the captioned connected Petitions.

J U D G E

Suleman Khan/PA