ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P.NO.D-2691 OF 2015

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Order with signature of Judge

1.For katcha peshi.

2.For hearing of Misc.No.11669/2015

13.07.2015

Mr.S.M.Iqbal, Advocate for the Petitioner.

Mr.Muhammad Altaf, A.D.P.G. NAB.

Ms. Seema Ahsan I.O., NAB.

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Through this constitution petition, the petitioner has applied for post arrest bail in Reference No.16/2014. The Reference has been filed against 16 accused persons. The investigation was started on the complaint of NBP by FIA. The challan was submitted before the Special Court (Offences in Banks) Karachi but the case was subsequently transferred to Accountability Court No.1 under Section 16-A(a) of NAO, 1999. The suspicious transaction report was received from financial monitoring unit regarding huge deposits in the bank accounts of accused No.1 maintained at HBL Pano Aqil and Freer Road Sukkur. The role of the present petitioner is defined in paragraph 17 of the Reference, which reads as under:-

“17. That the investigation report reveals that Khan Muhammad Mari (accused No.13) was working as Sub-Accountant in District Accounts Office Sukkur and handling government scroll received by various branches of NBP in Sukkur Region along with original instruments for further transfer to AGPR Office Karachi. His official duties involved receipts of Govt. Debit/Credit Daily Scroll along with original instruments/vouchers/CMA Cheques from concerned NBP Branches and then enter by them into the records/books then forwarding the same to other concerned sub-accountant for further process. Since the cheques of CMA were valid for 03 months, therefore, the accused No.13 instead of sending original cheques of CMA Karachi to AGPR provided these original cheques in next month after 1^st clearing/payment to the accused No.1 of NBP Pano Aqil who further processed them. After twice debiting the amounts from Central Government Account “C-1” of NBP, Pano Aqil Branch, Karachi against every cheques of CMA, the other accused persons (employees of NBP Pano Aqil city branch) again forwarded these CMA cheques alongwith Bank scroll to accused No.13. As a result of which these of cheques of CMA, Karachi were again posted in SAP system of Treasury Office Sukkur and the amounts of these cheques were again debited from the Account No.G-10419 (Assignment CMA-KC) Karachi. The cheques of CMA are mentioned in Para 39(d) of role of accused No.13 in IR. As per plea of accused No.1 that accused No.13 was given all amount in cash around Rs.163,000,000/-. The bank accounts of the accused No.13 are as per para 39(g). The accused No.13 has also owned the properties mentioned in Para 39(h) registered in his own name and his family (son/brother).”

2. Learned counsel for the petitioner argued that the petitioner has been falsely implicated in the NAB reference. Not a single incriminating document has been given which may implicate the petitioner. The only statement against the petitioner was given by the accused No.1 that he had given a sum of Rs.163,000,000/- as his share to the petitioner in cash. The NAB has also failed to collect any documentary evidence regarding payment of share of misappropriated amount to the petitioner. He further argued that the petitioner is sick and infirm person who has been hit by is paralysis twice. Hence the matter requires further inquiry and the petitioner is entitled for the grant of bail.

3. Conversely, learned D.P.G. NAB shown us the investigation report and argued that the petitioner was working as Sub-Accountant in District Account Office Sukkur and handling the Government scroll received by various branches of NBP in Sukkur with original instruments for further process to AGPR office Karachi. His official duties involved receipts of Government Debit/Credit daily scroll along with original instruments/vouchers/CMA cheques. Since the cheques of CMA were valid for 03 months, therefore, the petitioner instead of sending the original cheques of CMA Karachi to AGPR provided these original cheques in next month after 1^st clearing/payment to his accomplices of NBP Pano Aqil. After twice debiting the amounts from Central Government Account of NBP against every cheque, the accused person again forwarded these cheques along with Bank scroll to petitioner. As a result of which these cheques were again posted in SAP system of Treasury Office Sukkur and the amount of these cheques was again debited from Account No.G-10419 Karachi. The learned D.P.G. NAB has also pointed out from the investigation report that at least 41 cheques against which the amounts were deposited twice from Central Government Account “C-1” of NBP Pano Aqil and the cheques were also posted twice in SAP system Treasury Office Sukkur, hence the present petitioner was found accomplice and instrumental in the crime of embezzlement of huge amount. The accused No.1 in his plea stated that the petitioner was given all amount in cash around Rs.163,000,000/- and the I.O. also traced out 03 Accounts of the petitioner 02 in HBL Pano Aqil and 01 in J.S. Bank Pano Aqil. The investigation report further pointed the details of properties owned by Khan Muhammad Mari and his family. The learned D.P.G. NAB has also pointed out that the same petitioner in the same Reference filed C.P.No.D-6317/2014 for grant of bail, which was dismissed vide order dated 7.4.2015.

4. Heard the arguments. The role of the petitioner is well defined in the Reference which we have already reproduced. Serious allegations are leveled against the petitioner, who was found involved in the act of twice debiting the amount from Central Government Account “C-1” NBP Pano Aqil Branch. Official duties of the petitioner involved in receipts of Government debit/credit daily scroll along with original instrument/vouchers and CMA cheques from concerned NBP Branch and then enter them into records/books and then forwarded to the concerned Sub-Accountant for further process. The I.O. has also produced photocopies of 48 cheques to show the suspicious transactions detected by NAB authorities.

5. The order passed by the learned Division Bench of this court authored by one of us (Muhammad Iqbal Kalhoro-J) in C.P.No.D-6317/2014 shows that the same petitioner applied bail in the same Reference No.16/2014. The memo of C.P.No.D-6317/2014 is available on record which shows that earlier also various grounds were urged by the petitioner on merits and the same grounds are also taken in this petition but the order passed earlier also reflects that the petitioner’s counsel confined his arguments to the extent of bail on medical ground but he failed to advance any argument on merits. The learned division bench even not inclined to consider the bail on medical ground, therefore, the petition was dismissed. Now in the second petition for bail the counsel again raised same grounds on merits but failed to explain as to why the learned counsel did not argue the bail on merits in the first bail petition. He also failed to demonstrate from the date of dismissal of earlier petition and filing of the second (instant) petition what fresh grounds have become available to the petitioner to urge in the second bail petition in this court for consideration which were not considered earlier. It is well settled that deeper appreciation cannot be made at bail stage but from the incriminating material collected by the prosecution, no reasonable ground exits to believe that the petitioner is not involved in the crime. The learned counsel argued that some of the accused persons on are pre-arrest bail and claimed the rule of consistency, the role of every accused is defined separately in the reference therefore it is not worth consideration at this stage that if some of the accused are on pre-arrest bail subject to its confirmation or otherwise therefore, the petitioner should be also enlarged on post arrest bail despite specific role with specific incriminating material showing his involvement in the offence.

6. As a result of the above discussion, this petition is dismissed. The findings are tentative in nature and shall not prejudice the case of either party or on merits in the Accountability Court.

Judge