ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P.No.D-327 of 2012

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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)

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Present:

Mr. Justice GhulamSarwarKorai

Mr. Justice Naimatullah Phulpoto

Aftab Ahmad……….………………………………………………Petitioner

Versus

The State through Chairman NAB….……………………………Respondent

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ForPetitioner : Mr. Nisar Ahmed TararAdvocate along with Petitioner in person.

For Respondent : Mr. Noor Mohammad Dayo ADPG NAB.

Mr. Waleed Ansari DAG.

Date of hearing : 17.09.2013.

Date of announcement : 01.10.2013

O R D E R

NAIMATULLAH PHULPOTO, J.- Through the instant Constitution Petition, the Petitioner seeks pre-arrest bail pending trial in Reference No.20/2011 before the learned Administrative Judge, Accountability Courts at Karachi.

2. Brief facts leading to the filing of the instant Petition are that Petitioner joined Pakistan International Airline in 1975 as officer. He was promoted as Assistant Manager in 1982, thereafter he served as Corporate Manager in 1993. During service, Petitioner served at various positions in Pakistan and abroad as Country Manager Syria/Lebanon during 1992-1995 and Singapore/Brunei during 2001-2004. Petitioner’s last posting was as District Manager Sales Office, Karachi. M/s. Cargo Aids, IOTA approved registered cargo agent of PIAC since 1997 failed to submit fortnightly Sales Report and proceeds thereof to the concerned Manager Finance, District Sales Office, Karachi for the period ending September 15, 2007. After the Petitioner was apprised and he himself pointed out said discrepancy in the month of October 2007. The Petitioner pursued the matter with the Agent for early clearance of the dues and as such Agent issued four cheques of various amounts to settle the accounts, but said cheques were dishonoured. The Petitioner did not leave any stone unturned to recover dues of PIAC from the Agent but efforts could not be materialized finally Agent was declared as defaulter and PIAC terminated Cargo Agent and Cargo Sales Agreement entered into by the parties in 1997 and agent’s guarantee, quite inadequate against the liabilities of the Agent was encashed involving IATA. As a final resort, the General Manager Passenger Sales (Domestic) Mr. Mamoon Rashid submitted a complaint to the D.G, NAB Sindh against Agent and its partners for investigation. On submission of the above complaint, NAB took cognizance of the matter under the provisions of the NAB Ordinance 1999 and initiated investigation against CEO and partners of M/s Cargo Aids. During investigation, the Petitioner was called several times by the I.O for recording his statement as a witness. During the last month, a raid was conducted by the officials of Respondent on the Petitioner’s residence at Lahore, the Petitioner came to know that NAB has filed Reference No.20/2011 before the Administrative Judge, Accountability Courts at Karachi, implicating the Petitioner as one of the accused person in the scam of default committed by the Agent. It is stated that Petitioner filed a Writ Petition No.751/2012 before the Lahore High Court for protective bail and relief was granted to him to approach this Court. As such the Petitioner has filed the instant Petition for bail before arrest before this Court.

3. Mr. Nisar Ahmed Tarar learned Advocate for the Petitioner mainly argued that the Petitioner is innocent and he has committed no offence of corruption and corrupt practices. The Petitioner is an old and infirmperson, co-accused Mohammad Ibrahim Noor has been granted bail and case of the Petitioner/accused is identical.It is also argued that the name of the Petitioner is not mentioned in the complaint filed by PIAC. Lastly it is argued that the Petitioner has violated Circular which is not a criminal offence. Serious malafide on the part of NAB has been argued. In support of the contentions, reliance has been placed upon the case reported as ABDUL AZIZ KHAN NIAZI versus THE STATE through Chairman NAB, Islamabad (PLD 2003 Supreme Court 669).

4. Mr. Noor Mohammad Dayo learned ADPG NAB and learned DAG argued that Petitioner was District Manager Sales Karachi. M/s Cargo Aids Agent failed to submit fortnightly Sales Report and proceeds thereof to the concerned Manager Finance, District Sales Office, Karachi, for the period ending September 15, 2007 and the Petitioner took no serious efforts. It is submitted that Petitioner has committed offence of corruption and corrupt practices within the ambit of NAB Ordinance, 1999. Mr. Dayo has opposed the Petition.

5. Record reflects that co-accused Muhammad Ibrahim Noor has been granted bail by this Court in C.P.No.2176/2012 dated 03.04.2013mainly for the following reasons:-

“However, case of petitioner Muhammad Ibrahim Noor is distinguishable from the case of co-accused Syed Sohail Hassan as allegation against petitioner Ibrahim Noor was that he neglected to perform his statutory duties and gave monetary gains to accused Nos. 1 to 3. Learned Special Prosecutor NAB could not explain which statutory duty petitioner failed to perform. Apparently, no financial gains have been availed by the petitioner Muhammad Ibrahim and he had initiated the case for recovery of defaulted amount from the accused persons. Connivance of applicant Muhammad Ibrahim with co-accusedSyed Sohail Hassan and others and his involvement in the case is yet to be determined at trial. Prima facie, case against applicant/accused Muhammad Ibrahim requires further inquiry. For above stated reasons, interim pre-arrest bail already granted to the petitioners/accused is hereby confirmed on same terms and conditions. However, prosecution would be at liberty to apply for cancellation of bail granted to applicant/accused Muhammad Ibrahim if some tangible evidence isbrought on record against him during trial.”

6. Case of the Petitioner Aftab Ahmed is identical to the case of co-accused Mohammad Ibrahim Noor. Main allegation against the Petitioner was that he neglected to perform his statutory duties and gave monetary gains to accused Nos. 1 to 3. Mr. Noor Dayo learned ADPG NAB failed to explain which statutory duty Petitioner Aftab Ahmad failed to perform at the relevant time. Apparently, no financial gains have been availed by the Petitioner and Petitioner had pursued the matter with the Agent for early clearance of the dues and Agent issued four cheques of various amounts but the said cheques were dishonoured. Petitioner has further stated that Agent, because of his efforts was declared as defaulter. It is also argued that name of Petitioner Aftab Ahmed did not transpire in complaint but NAB with ulterior motive joined him as accused in Reference. Connivance of applicant Aftab Ahmed with co-accused Syed Sohail Hassan and others and his involvement in the case is yet to be determined after recording the evidence at trial. Prima facie, case against the Petitioner/accused is identical to the case of co-accused Mohammad Ibrahim Noor. In support of the submissions reliance has been placed by learned counsel for the Petitioner upon the case of ABDUL AZIZ KHAN NIAZI versus THE STATE through Chairman NAB, Islamabad (PLD 2003 Supreme Court 669)relevant portion is reproduced as under:

“8. The perusal of the record show that the petitioner and Aitezaz Ahmed Khan Niazi, his co-accused, while facing the same charge based on the same allegation, subject to the scrutiny at the trial, in the light of evidence yet to be recorded, stand at par to each other and apparently the case against the present petitioner is not distinguishable on merits. Consequently, in the light of rule of consistency, the petitioner would also be entitled to the concession of bail.”

7. Serious malafide on the part of the NAB has been alleged. Name of Petitioner Aftab Ahmed did not transpire in compliant. Case against the Petitioner/accused is identical to the case of co-accused Mohammad Ibrahim Noor, while relying upon the above stated authority and looking to the circumstances of the case, we are of the tentative view that a case for grant of pre-arrest to applicant/accused Aftab Ahmed is made out, therefore, interim pre-arrest bail already granted to the Petitioner/accused is hereby confirmed on the same terms and conditions. However, prosecution would be at liberty to apply for cancellation of bail granted to applicant/accused Aftab Ahmed if some tangible evidence is brought on record against him during trial. Consequently, C.P.No.D-327/2012 is accordingly disposed of.

JUDGE

Wasim