ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. D–567 of 2019

a/w C. Ps. No. D– 598, 627, 646, 649, 688, 704, 708, 743, 904, 905, 1243 of 2019, 1329, 1330, 1331, 1332, 1361

1362, 1368, 1369, 1370, 1371, 1391, 1473, 1563 of 2020

117 and 249 of 2021

Date of hearing

Order with signature of Judge

For bail before arrest

1. For orders on office objection at flag `A`

2. For orders on CMA No.2107/2019

3. For hearing of main case

16-03-2021

M/s. Nisar Ahmed Bhanbhro, Dareshani Ali Haider Ada, Nusrat Hussain Memon, Shakeel Ahmed Ansari, Amir Mustafa Kamario, Shakeel Ahmed Kalwar, Waseem Ahmed Sundrani, Sikander Ali Junejo, Kashif Hussain Shaikh and Sikander Ali Shah Abid Hussain Abro 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 27 Constitutional Petitions filed by the Petitioners Ahsan Ali Memon (son of Hakim Ali), Bilawal Iqbal Memon, Muhammad Pariyal Solangi, Teja Ram, Siraj-ul-Haq Dayo, Sikander Ali Mirani, Abid Hussain Shah, Tarique Ahmed Pathan, Ahsan Ali Memon(son of Imdad Ali), Farman Ali Jaffri, Barkat Jaffri, Nasrullah Odhano, Iklhlaq Ahmed Joyo, Tanveer Ahmed Joyo, Munawar Ali Mirani, Arsullah Soomro, Amir Ali Soomro, Hafeezullah Peerzado, Feroz Ahmed Peerzado, Khalil Ahmed, Touqeer Ali Memon, Hubdar Ali Memon, Sultan Ahmed, Rahim Bux, Altaf Ahmed Larik, Abdul Salam Unnar, Muhammad Ashraf (son of Rehmatullah), Ali Hassan Dayo, Safeer Ahmed Pirzado, Safdar Ali Pirzado, Noor Nabi Pirzado, Hizbullah Pirzado, Akhtar Muhammad Pathan, Zaheer Ahmed, Muhammad Ashraf (son of Muhammad Jameel), Shahzaib @ Haibat and Aijaz Ali Bhutto, who are seeking pre-arrest bail in Reference No.05 of 2019, pending adjudication before the Accountability Court at Sukkur.

2. It appears that C.P.No.D-904/2019 to the extent of petitioner No.1 namely Hafeezullah Peerzado has become infructuous as he has already filed a C.P.No.D-743/2019 wherein similar relief of bail has been sought by him. Therefore, CP.No.D-904/2019 to the extent of petitioner No.1 Hafeezullah Peerzado stands dismissed being infructuous.

3. Briefly stated the facts of the Reference are that the officers / officials of Town Committee Khairpur in connivance and collusion with contractors were involved in misusing of authority and misappropriated the Government funds by violating codal formalities for payments as per relevant rules; that the officers/officials made payments to the contractors which were illegal, unauthorized and unlawful. It is further alleged that the officers / officials of Town Committee Khairpur (some of the petitioners) misappropriated the Government funds which were entrusted to them and failed to exercise their authority and rendered undue benefits to the contractors (some of the petitioners), who withdrew government funds for which they were not lawfully entitled and thereby caused loss to the government exchequer to the tune of Rs.79,524,282/- (Rupees Seven crore ninety five lacs twenty four thousand two hundred eighty two). Therefore, the Petitioners/accused committed the offence of corruption and corrupt practices, and after completing the investigation, Reference No.05/2019 was filed against them.

4. 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.

5. 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.

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

7. 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.5/2019. The Hon’ble Supreme Court has also granted bail to accused on similar terms as discussed below.

8. 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.”

9. 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.”

10. 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.

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
Ahsan Ali Memon son of Hakim Ali	Rs.1,797,569/-	Bilawal Iqbal Memon	Rs.1,030,350/-
Muhammad Paryal Solangi	Rs.3,379,644/-	Teja Ram	Rs.193,000/-
Sirajul Haq Dayo	Rs.15,000/-	Sikander Ali Mirani	Rs.470,685/-
Abid Hussain Shah	Rs.1,338,405/-	Tarique Ahmed Pathan	Rs.574,500/-
Ahsan Ali Mmon son of Imdad Ali	Rs.19,881,070/-	Farman Ali Jaffri	Rs.2,291,002/-
Barkat Jaffri	Rs.520,150/-	Nasrullah Odhano	Rs.3,885,189/-
Ikhlaq Ahmed Joyo	Rs.1,214,768/-	Tanveer Ahmed Joyo	Rs.470,685/-
Munawar Ali Mirani	Rs.1,121,484/-	Arsullah Soomro	Rs.1,123,527/-
Amir Ali Soomro	Rs.512,700/-	Hafeezullah Peerzado (CPD-743/2019	Rs.19,881,1070/
Aijaz Ali Bhutto	Rs.92,500/-	Feroz Ahmed Peerzado	Rs.106,000/-
Khalil Ahmed	Rs.2,341,650/-	Touqeer Ali Memon	Rs.42,500/-
Hubdr Ali Memon	Rs.510,200/-	Sultan Ahmed Rind	Rs.21,000/-
Rahim Bux	Rs.98,000/-	Altaf Ahmed Larik	Rs.87,000/-
Abdul Salam Unnar	Rs.43,000/-	Muhammad Ashraf s/o Rehmatullah	Rs. 21,000/-
Ali Hassan Dayo	Rs.30,000/-	Safeer Ahmed Pirzado	Rs.196,000/-
Safdar Ali Pirzado	Rs.122,000/-	Noor Nabi Pirzado	Rs.193,000/-
Hizbullah Pirzado	Rs.100,000/-	Akhtar Muhammad Pathan	Rs.236,000/-
Zaheer Ahmed	Rs.192,500/-	Muhammad Ashraf s/o Muhammad Jameel	Rs.580,210/-
Shahzaib @ Haibat	Rs.91,915/-

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