ORDER SHEET
IN
THE HIGH COURT OF SINDH, KARACHI
C.P.
No.D-1370 of 2013
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Date Order with signature(s) of Judge(s)
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For Katcha Peshi
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23.04.2013
Mr.
Hassan Khursheed Hashmi, Advocate
for Petitioner
Mr.
Noor Muhammad Dayo, A.D.P.G.,
N.A.B. along with Najamuddin
Abro, I.O., N.A.B.
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NAIMATULLAH PHULPOTO, J.-- Through this
constitution petition, petitioner Shaikh Muhammad Nadeem seeks post arrest bail in the investigation against
the officials of N.I.T., N.I.B. and Crescent Commercial Bank and others.
Brief facts as disclosed in the constitution
petition are that petitioner was Assistant Vice President of National
Investment Trust Limited. It is alleged that petitioner along with some
officials of N.I.T., N.I.B. Bank and Crescent Commercial Bank has been involved
in embezzlement/misappropriation of two dividend warrants belonging to two unit
holders, namely, Barkat Ali and Nadeem
Barkat Ali amounting to Rs.16.18 million. It is
further alleged that by using fake application, purported to have been made by
genuine unit holders fraudulently converted option from Cumulative Investment
Plan into Income Distribution Warrants, which allowed the dividends to be
withdrawn in the form of cash rather dividends in the shape of N.I.T. units. It
is further stated that these IDWs were subsequently encashed by opening two fake accounts in the name of unit
holders, one at N.I.B. Bank, D.H.A. Branch and other at Crescent Commercial
Bank, Foundation Branch Saddar, Karachi.
On 02.10.2007 incident came to the knowledge of N.I.T. and on 10.10.2007 an
initial inquiry report was submitted. On 11.10.2007 N.I.T. had written a letter
to the State Bank of Pakistan and informed about the offence and requested for
help to recover the misappropriated amount from the Banks concerned and also
the relevant documents used to fraudulently open the accounts in the two banks.
On 08.11.2007 State Bank of Pakistan replied to the aforesaid letter and
advised the N.I.T. to report the fraud to the National Accountability Bureau
for necessary action in the matter. On 05.12.2007 N.I.T. filed a complaint with
the N.A.B. for holding inquiry into the matter. On 08.01.2008 an inquiry was
authorized and on 27.05.2009 Inspector General of Police authorized
investigation against the officials of the N.I.T., N.I.B. and Crescent
Commercial Bank, including the petitioner. As per initial investigation report
only Kamran Zafar, Manager, Crescent Commercial Bank
was nominated as accused. It is stated in the petition that name of the
petitioner was not mentioned in the said report. On 20.09.2012 after six years,
initial investigation report was submitted. The Inspector General of Police while
exercising his powers under sections 18(e) and 24(a) of the National
Accountability Ordinance, 1999 issued warrants of arrest for alleged offence of
the corruption and corrupt practices under section 9(a) of the said Ordinance.
On 15.03.2013 the petitioner was arrested from the N.A.B. office where he had
voluntarily appeared and joined the investigation. On 16.03.2013 the petitioner
was produced before the learned Administrative Judge, Accountability Court,
Karachi where Najamuddin Junejo,
I.O. of N.A.B., obtained his 15 days’ remand for
further investigation. On 30.03.2013 investigation officer submitted the report
before the learned Administrative Judge, Accountability Court, Karachi that
investigation in respect of the petitioner was complete and his custody was no
more required and petitioner was remanded to the judicial custody, hence bail
application is moved.
Mr. Hassan Khursheed
Hashmi, learned advocate for the petitioner has
contended that present petitioner has only sent parcel, containing 1669 IDEs,
including the two IDWs in question with the help and assistance of N.I.T. staff
through courier to the Zonal Manager, N.I.T. Lahore. He has further submitted
that concerned officer of N.I.T. Lahore received the parcel,
opened the same and found two IDWs in the names of Barkat
Ali and Nadeem Barkat Ali
missing. Instead of informing the head office or his branch Manager he remained
silent and proceeded on leave. It is also argued that the petitioner is not the
beneficiary in any manner from the alleged offence. Investigation is also complete, petitioner/accused is no more required for further
investigation. Case against petitioner/accused requires further inquiry. In
support of his contentions he relied upon the following reported cases:
(i)
Muhammad Saeed
Mehdi vs. State & 2 Others (2002 SCMR 282)
(ii)
Abdul Aziz Khan Niazi
versus the State (PLD 2003 Supreme Court 668)
(iii)
Muhammad Zafar
Maniar Vs. Shahzad Ahmed and another (2011 MLD 602)
Mr. Noor Muhammad Dayo, learned Additional
Deputy Prosecutor General NAB halfheartedly opposed the bail and submitted that
in case bail is granted to the petitioner, the petitioner may be directed to
furnish huge surety.
We have carefully heard the learned
counsel for the parties and perused the relevant record.
Record reflects that Najamuddin Abro, investigation
officer NAB Sindh had submitted report before the learned Accountability Court
at Karachi dated 30.03.2013 and learned trial Court has mentioned in the order
that accused is no more required for investigation and he was remanded to the
judicial custody. Mr. Dayo admitted that case is
based on documentary evidence, there is no question of
tampering with the evidence. Petitioner has been interrogated and he has been
remanded to the jail. Petitioner’s handwriting was also not found on IDWs. Prima
facie, role of the petitioner/accused was that he had dispatched the parcel, the
truth or otherwise of allegations can only be determined at the trial by the
Accountability Court after recording evidence. Suffice it to say, that prima
facie petitioner does not appear to be guilty of misuse of official position or
to obtain illegal gain for himself. Rightly reliance has been placed upon the
case of Muhammad Saeed Mehdi vs. the State (2002 SCMR
282), in which the Honourable Supreme Court of Pakistan has held as under:
“As
regards the nature of accusation against the petitioners, the truth or
otherwise of such allegations can only be determined at the trial by the Court
after deep analysis of the evidence that may be adduced by the parties. Without
going deeper into the merits of the prosecution case, it may suffice to observe
that prima facie the petitioner does not appear to be guilty of misuse of
official position or misappropriation of public funds to his own use or in
order to cause monetary loss of public funds or to obtain illegal gain for
himself or for any of his relatives or friends.”
For the above stated reasons while
relying on the above cited authority, case against the petitioner/accused
requires further inquiry. Concession of the bail is extended to the
petitioner/accused. However, following the dictum laid down by the apex Court
in the case of Shamrez Khan petitioner is directed to
deposit a sum of Rs.5.000(M) in cash with the Nazir of this Court which would
be invested for the ultimate disbursement as directed by the trial Court and
further sum of Rs.5.000(M) as surety to the satisfaction of the Nazir of this
Court.
Needless to mention that observations
mentioned hereinabove are tentative in nature, the trial Court should not be
influenced while deciding the case on merits.
JUDGE
JUDGE
Gulsher/PA