IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.D-22 of 2022
Present;
Mr.
Justice Arshad Hussain Khan
Mr. Justice Amjad Ali Sahito, JJ.
Applicant. Muhammad Hassan son
of Mithal Chachar through Mr. Mukesh Kumar G. Karar Advocate.
Respondent. The Chairman
National Accountability Bureau, through M/s Mujeeb-ur-Rehman Soomro and
Bahawaluddin Special Prosecutor NAB, Sukkur.
Date
of hearing & Order 29.03.2022
O R D E R
ARSHAD HUSSAIN KHAN, J; Applicant/accused (Muhammad Hassan son of Mithal Chachar) through
instant Cr. bail application has sought post-arrest bail in National
Accountability Bureau [NAB] Reference No.16 of 2019, wherein the above
Applicant is shown as Accused No.10, pending adjudication before learned
Accountability Court at Sukkur. The Applicant’s bail application filed before
the Accountability Court Sukkur has been dismissed vide order dated
09.12.2021.
2. As per the aforesaid NAB reference, it is revealed
after investigation that the
Applicant/accused being the official of Education Department Kashmore, in
connivance with accused No.1 to 8 and accused Nos.9 to 22 is involved in
illegal issuance and withdrawn of excessive salary in violation of all codal
formalities and law which resulted loss to the Government Exchequer to the tune
of Rs.5,95,23,526/- (rupees Five Crores, ninety five lacs, twenty three
thousand, five hundred and twenty six). It is stated that the accused persons
have violated the codal formalities to give undue benefit to the accused Nos.12
to 22 who are beneficiaries of the proceeds of these cheques, hence, they are
guilty of the corruption and corrupt practices as envisaged in Section
9(a)(iii)(vi) &(xii), punishable under Section 10 of the National Accountability
Ordinance, 1999 [NAO] and schedule thereto.
3. Learned Counsel for the Applicant states
that applicant being gazette officer is not custodian of the record and
misplacement of the record by the lower staff. He further contended that
applicant had not signed any cheque and whole forgery was committed by Gul
Muhammad, Ex-Head Clerk as applicant refused to sign even bill of payment but
DDO signed the bills at the behest of said Gul Muhammad who withdrawn all
amount into the account of their relatives i.e. Accused No.12 to 22 which they
already admitted even in investigation. He further submits that co-accused
having similar role had already been enlarged on bail by this Court hence, rule
of parity is also applicable to the case of present applicant. He contended
that present Applicant/accused is not involved in illegal withdrawal of
excessive salary, besides, he is a senior citizen.
4. Learned Special Prosecutor NAB has
opposed the grant of bail and stated that sufficient material is available against
the Applicant, showing his nexus to the offence committed.
5. We have considered
the arguments advanced by learned counsel for the applicant/accused and learned
Special Prosecutor NAB as well as perused the material available on the record.
6. It is imperative to discuss a brief background. As per the
Investigation Report, case was initiated suo
moto by DG NAB in March, 2013, as an offshoot from an Inquiry against
officers/officials of District Accounts Office, Umerkot. After completing
formalities the case was transferred to NAB Sukkur in 2015. Inquiry was
authorized vide letter dated 28th April 2016 and was converted into
investigation by the correspondence of Ist June, 2017. NAB consumed four years
just in inquiry and the investigation and the Subject Reference was filed in
the year, 2019 being Reference No.16 of 2019. Earlier pre-arrest bail was
granted to number of petitioners/accused persons including the present
applicant by this Court 16.03.2021, subject to depositing of the individual liability
calculated by Respondent-NAB; however, it was challenged before the Honourable
Supreme Court, but without any success and subsequently a Review was filed in
this Court which also was dismissed. In the intervening period amendments have
been made in NAO, inter alia,
empowering the Accountability Courts to decide the bail applications of
accused. Consequently, present Applicant filed a Criminal Bail Application
before the learned Accountability Court but the same was dismissed, by Order
dated 09.12.2021 (at page 11 of the Court File).
7. The modus operandi of
the offence committed as mentioned in the Investigation Report (IR) is that the
group of family members who are employees in Education Department (Taluka
Kashmore) were illegally paid huge amount of funds. The allegation against the
present applicant that he being ADEO/TEO (Male) Kashmore is involved in offence
of corruption and corrupt practices in connivance of Gul Muhammad and others
and he having DDO powers allowed withdrawal of huge amount of Government funds
from the Cost centers he was responsible for and from the ADO Male Bank account
operated in NBP Kashmore though in case of encashment of cheque(s) of heavy
amount the DDO should bring the cash from the bank himself instead of giving
authority to any other employee, but means rea of present Applicant whether
withdrawal of amount of Government funds were with dishonest intent or due to
procedural lapse, is yet to be determined at Trial. It is also stated in (IR),
that one Gul Muhammad who is working as Head Clerk in Education Department has
withdrawn huge amount of funds and credited those funds in to his personal
account. The table mentioned with regard to transaction of accused Gul Muhammad
also shows that all cheques were not signed by the present accused but by
different officers, out of whom Rafique Ahmed has already passed away.
8. The statement of the Branch Manager
(Ghulam Abbas) of National Bank of Pakistan before the Investigation Officer is
on record, wherein he has mentioned the names of the beneficiaries in whose
account proceeds of various cheques were landed/credited; most of the disputed
transaction were transferred in the bank account of one of the accused Gul
Muhammad. Name of the present Applicant is not mentioned in the list of
beneficiaries in whose bank accounts the proceeds of cheques in dispute have
landed/credited. Record further shows that different DDO were posted during the
period when alleged offence was committed and all the cheques in question were
not signed by the present Applicant/accused.
9. As the sequel of the above discussion, we are of the considered view that
Applicant has succeeded to make out his case for further inquiry. Even otherwise, the culpability of accused
in connection with the offence committed, is yet to be finally determined. The
applicant/accused has been in continuous custody
since his arrest and is no more required for any investigation nor the
prosecution has claimed any exceptional circumstance, which could justify
keeping him behind the bars for an indefinite period pending determination of
his guilt. Moreover, co-accused having similar role have
already been granted bail by this court; rule of parity is also applicable in
the present case. Reference in this regard can be placed in the case of Muhammad
Daud and another v. The State and another [2008 SCMR 173].
Hence,
considering all these factors, we vide order dated 29.03.2022 extended benefit
of bail to the Applicant subject to his furnishing solvent surety in the sum of
Rs. Two Million and PR bond in the like amount to the satisfaction of learned
Trial Court.
10. Needless
to mention here that any observation made in this order is tentative in nature
and shall not affect the determination of the facts at the trial or influence
the trial court in reaching its decision on the merits of the case. It is,
however, made clear that in the event if, during proceedings, the
applicants/accused misuse the bail, then the trial court would be competent to
cancel their bail without making any reference to this Court.
Above
are reasons for the short order dated 29.03.2022.
J U D G E
J
U D G E
Ihsan