ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
CP No.D-1846 of 2016
CP No.D-1929 of 2016
CP No.D-1873 of 2016
CP No.D-1922 of 2016
CP No.D-1933 of 2016
CP No.D-1993 of 2016
CP No.D-2010 of 2016
CP No.D-2063 of 2016
CP No.D-2148 of 2016
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Date |
Order with signature of Judge |
For katcha peshi
Present:
Mr. Justice Aqeel Ahmed Abbasi &
Mr. Justice Muhammad Faisal Kamal Alam, JJ.
25-05-2016
M/S Zulfiqar Ali Sangi, Ghulam Shabbir Shar, Sajjad
Muhammad Zangejo, Nisar Ahmed Bhambhro,
Qurban Ali Malano, Zulfiqar Ali Naich a/w petitioners
Mr. Muhammad Zubair Malik Special Prosecutor NAB Sukkur
.-.-.-.-.-.-.-.-.-.-.-.-
O R D E R
1. The aforesaid petitions are being disposed of by consent of the counsel for the petitioners through this common order, as same relate to common reference No.4/2016 filed by the NAB authorities before the Accountability Court at Sukkur, wherein, there is allegation against the petitioners who are teachers; Drawing Teacher (DT), Oriental Teacher (OT)/Arabic Teacher, Home Economic Teacher (HET), Physical training Instructor (PTI), Assistant Workshop Instructor (AWI), that their appointments were made in violation of law and without fulfillment of codal formalities, hence, they are beneficiaries of alleged corruption made by officials of Education Department, Kashmore at Kandhkot.
2. Contention of the learned counsel for the petitioners is that petitioners were given appointments in the Education department in District Kashmore at Kandhkot in the year 2012 and onwards, pursuant to advertisements published in Newspapers, after proper verification of their eligibility. It has been further submitted that petitioners also appeared in written test and interviews and were declared as successful candidates, thereafter, their documents were duly verified by competent authorities and joining letters were issued and since then, they are performing their duties in various schools and there are no complaints whatsoever from any quarter regarding their appointments. Per learned counsel, NAB authorities, without any complaint or material against petitioners, and in violation of section 18 of the NAB Ordinance, without even issuing call-up Notice u/s 19 r/w 27 of the NAB Ordinance 1999, so that petitioners could defend the allegations and submit response to the queries, have directly issued warrant of arrest, pursuant to which, the petitioners have approached to this court for seeking protection against illegal arrest and humiliation by the NAB authorities. Such protection has been duly provided to the petitioners by this court in above petitions, and the NAB authorities have been restrained from arresting the petitioners subject to their furnishing solvent surety in the sum of Rs.100,000/- (rupee one lac) each and PR bond in the like amount to the satisfaction of Additional Registrar of this court. Per learned counsel, from perusal of the allegations as contained in the subject reference, which has been filed by NAB authorities before Accountability Court, it can be ascertained that there is no proper complaint or any tangible material which may connect the petitioners with the alleged offence under the NAB Ordinance, 1999, whereas, petitioners are being un-necessarily dragged in the above reference as there is no role of the petitioners with regard to allegations of alleged illegal appointments made by the officials of Education Department. It has been further contended by learned counsel for the petitioners that petitioners have never been confronted with any allegation or material by the NAB authorities, whereas, NAB authorities are acting malafidely against the petitioners on the basis of a false purported frivolous complaint, which complaint was also investigated by the Anti-corruption department, whereas, an FIR No.21/2009 was registered at PS ACE Kashmore at Kandhkot u/s 409, 420, 34 PPC r/w section 5(2) Act-II of 1947 against the officials of Education department (Elementary) of District Kashmore at Kandhkot. Per learned counsel, such Special case No.27/2011 was proceeded before Special Judge Anti-Corruption (Provincial) Larkana vide order dated 30.1.2016 passed on application u/s 249-A Cr.P.C, whereas, the accused persons nominated in above FIR have been acquitted from the alleged charge of corruption. Such order has been placed on record. It has been further contended by learned counsel for the petitioners that NAB authorities have not only acted in violating of express provisions of law but also denied the petitioners’ constitutional right, as no fair trial is being extended to the petitioners. Per learned counsel, NAB authorities are also violating the directives as contained in their own SOP issued in January 2016, according to which, NAB authorities are required to investigate in the matters involving an amount above 100 million.
3. Conversely, the learned Special prosecutor NAB submits that there is complaint against the petitioners regarding their illegal appointments in the Education department without fulfilling codel formalities, therefore, the petitioners, who are beneficiaries of corruption by officials of Education department, therefore, they have been included in the above reference filed before Anticorruption Court as co-accused. It has further been contended that NAB has prima-facie good case against the petitioners therefore, ad-interim bail granted to them may not be confirmed and the petitioners may not be enlarged on bail.
4. We have heard the learned counsel for the petitioners, learned Special Prosecutor NAB (Sukkur) and also perused the reference against the present petitioners, as well as allegations as contained in the order dated 30.1.2016 passed by Special Judge Anti-Corruption (Provincial) Larkana in Special case No.27/2011. Learned Special prosecutor was asked to refer or to place on record any incriminating material which may connect the petitioners with the alleged reference, however, except the allegations of petitioners’ illegal appointments, nothing has been placed on record in this regard. Learned Special Prosecutor was also required to refer to the complaints, which according to NAB, formed basis of initiating enquiry against the petitioners, and also the supporting material, which required the NAB authorities to form an opinion regarding the correctness of such complaints, however, the Special Prosecutor NAB, could not substantiate the entire process adopted in the instant case, and has contended that since NAB authorities have jurisdiction even to initiate enquiry and investigation suo-moto, therefore, it is not necessary that in each case the NAB authorities should be in possession of any complaint or some concrete material, before initiating an enquiry into the allegation of corruption.
5. After having taken into consideration the contention of learned counsel, the material available on record and, in view of inability of the Special Prosecutor NAB (Sukkur) to refer any concrete and tangible material or evidence, which could establish a prima-facie case against present petitioners regarding allegations of corruption, and also the order passed by Special Judge Anti-corruption (Provincial) Larkana in Special Case No.27/2011, whereby officials of Education Department of District Kashmore at Kandhkot have been duly acquitted from the same charges of corruption, which have also been mentioned in the alleged complaints and reference, we are of the opinion that the petitioners have made out a case of further enquiry, whereas, their false implication and malafide on the part of NAB authorities can not be ruled out at this stage.
6. Accordingly, Ad-interim bails granted to petitioners vide our orders dated 28.4.2016, 29.4.2016 02.5.2016, 03.5.2016, 04.5.2016, 05.5.2016, 10.5.2016 and 12.5.2016 respectively, are hereby confirmed on the same terms and conditions. However petitioners will attend the Accountability Court and would be at liberty to file applications u/s 265-K Cr.P.C seeking quashment of reference before the Accountability court, which shall be decided strictly in accordance with law by the Accountability Court after hearing all concern.
7. Instant petitions stand disposed of in the above terms along with the listed applications.
JUDGE
JUDGE
Suleman Khan/PA