ORDER
SHEET
C.P.
No.D-1827 of 2012
C.P.
No.D-1828 of 2012
C.P.
No.D-1829 of 2012
C.P.
No.D-1830 of 2012
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Date Order with signature of Judge
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PRESENT: MR.
JUSTICE SYED HASAN AZHAR RIZVI.
MR. JUSTICE MUHAMMAD SHAFI SIDDIQUI
DATE OF HEARING 02.07.2012
M/s.
Yousuf Moulvi and Shahab Sarki Advocates for the
Petitioners.
Mr. Noor Muhammad Dayo, Senior Prosecutor NAB.
Syed
Hasan Azhar Rizvi J; By this common order, we intend to dispose of five
Cons. Petitions Nos.D-1826 to 1830 of 2012 as facts and circumstances of all
the five petitions are almost similar and the same have been filed challenging
the Warrant of Arrest issued by the Chairman NAB on 10.04.2012 for commission
of offence under section 9(a) of National Accountability Ordinance, 1999and schedule
thereto and subsequently reference has been filed on 11.05.2012 before the
Administrative Judge of Accountability Courts, Karachi by the Chairman NAB, copy
of which has been filed by the learned Counsel for the petitioners with
statement dated 29.06.2012, wherein all the Petitioners have been shown as
accused No.2 to 6
2. Brief facts of the case
are that during scrutiny and reconciliation exercise held in Accountant General
Office in 2004, it was revealed that 35 pension sealed authorities, which had
not been issued by the Accountant General Sindh office, were found entered in
the District Accounts Offic, Hyderabad Office in PPO
Register and payment of commutation and pension was made to 35 fake/ghost
pensioners causing loss to the Government exchequer to the tune of Rs.29,223,296/-
and Rs.2,940,751/- for fake pension and commutations of bills totalling
Rs.32.16 Million. On complaint received from source report, an inquiry was
conducted against the officials of District Accounts Office Hyderabad and others
that was converted into investigation by Authorization Letter dated 11.09.2009
whereby it transpired that the officials of District Accounts Office Hyderabad
used names of ghost employees of Education and Health Department of Government
of Sindh to prepare fake pension documents and for that procedure was adopted
for encashing fraudulent pension commutation on the
basis of forged/fictitious documents in connivance with private persons in
violation of settled procedure, pension/Treasury rules of Audit Menual and regulation for preparation of pension documents
issued by the Government from time to time.
3. M/s Yousuf
Molvi and Mr. Shahab Sarki learned Counsel for
the Petitioners submitted that the petitioners are innocent persons, who were
never involved in any criminal activities throughout their employments in
Government service and have been falsely implicated and arrested due to enmity malafidely. Prosecution case set-up against the petitioners
in NAB Reference is of disbursement of Rs.32.16 Million through 35 ghost
employees through cheques of different banks after preparation of forged, fictious and fabricated documents. It was further argued by
the learned Counsel for the Petitioners that the cases against the Petitioners
are based on documentary evidence and all the documents pertaining to the
matter are in possession of the District Account Office, Hyderbad
and in the office of Accountant General Sindh, therefore, there is no chance of
tempering with the evidence. Learned Counsel for the Petitioners urged that
admittedly the Petitioners are not beneficiaries of the amount and the amount
of Rs.32.16 Million has been paid to 35 persons whose names and details are
mentioned in the investigation report after initial inquiry, which has already
been filed at page-65 as Annexure “E” with the statement filed by the learned
Counsel for the Petitioners dated 29.06.2012. Learned Counsel for the
Petitioners submitted that Petitioners are confined in lockup of NAB
Authorities since 14.04.2012 and the last remand was expired on 17.5.2012.
Reference has already been submitted on 11.05.2012 before the Administrative
Judge, Accountability Court at Karachi. It was also contended by the learned
Counsel for the Petitioners that the proceedings against the Petitioners have
been initiated without any prior inquiry or investigation by the Chairman NAB or
any other officer of the NAB authorized by him. Learned Counsel for the
Petitioners further contended that there is unexplained delay in initiating
inquiry against the Petitioners and according to their own documents commission
of fraud and forgery was deducted in the year 2004 but inquiry was started in
2009 and arrest was made in 2012 but no plausible reason for delay in filing
Reference has been given. Learned Counsel for the petitioner further submitted
that the cases of the petitioners are of further inquiry as such they may be
granted bail. He placed reliance upon 2005 SCMR 1666 and 2008 P.Cr.L.J. 910.
4. Mr.
Shahab Sarki learned
Counsel for the Petitioners in C.P. No.D-1828 has referred to page-33 filed alongwith
statement dated 29.06.2012 by the learned Counsel for the Petitioners, wherein
duties of the auditors has been enumerated. He contended that the Petitioner is
not an Auditor but Sub-Accountant at District Accounts office Hyderbad. He drawn our attention to the procedure of
submission of pension mentioned as Annexure “F” at page-69 filed alongwith
statement.
5. On the other hand Mr. Noor Muhammad Dayo Deputy
Prosecutor NAB vehemently opposed the grant of bail to the Petitioners and
submitted that after thorough inquiry and investigation by NAB Authorities
Reference has been submitted before the Accountability Court. Specific Role has
been assigned to each of the Petitioners, duties and responsibilities of the
officials of the office of the Accountant General Sindh, Karachi and District
Accounts Office Hyderabad for processing of pensions and commutation has
already been provided as per rules of Audit Manual and Treasury Rules. Learned
DPG NAB further submitted that cases against the Petitioners are fixed for frmaing of charge. He invited attention of this Court
towards the statement under section 161 Cr.P.C of
Deputy Manager, Provincial Headquarter NADRA. According to that witness, out of
35 CNICs of the ghost pensioners, 29 CNICs were analysed and examined and were
found fake and fictitious. Petitioners have failed to comply with the proper
rules and procedure while preparing pension payment and had failed to verify
the proper identification of the pensioner as per Clause (f), Rule 172 of
Auditor’s Duties, Pension Audit Section, Chapter-8 of
Audit Manual.
6. We have heard M/s Yousuf Molvi and Shahab Sarki learned Counsel for
the Petitioners, Mr. Noor Muhammad Dayo learned Deputy Prosecutor NAB and perused the material
available on record with their assistance.
7. The procedure for verification and checking of pension payment
order (PPOs) has already been laid down in the Letter No.TM/AGC(85)/01 dated
August 08, 1985, which are as follows:-
“(1) Pension documents in respect of any retired Government employee are
received at Office of Accountant General Sindh through individual or
representative of the concerned department. It contains retirement letter,
Descriptive Role, copy of NIC/CNIC , photograph. Last Pay certificate, No inquiry and Bonafide
certificates of the employee from respective department, from where he/she
retires. Presently, pension cases of retired
Government employee being prepared and finalized by the concerned District
Accounts Offices.
(2) The pensioner’s papers
prepared by the concerned department are submitted in vigilance cell of AG for
verification. The vigilance cell scrutinizes pension papers as well as verifies
the signatures of concerned pension sanctioning authority/DDO/Department. After
completion of all formalities, cases file is forwarded to concerned pension
section (PN-1 deals with Education Department and other and PN-II deals with
Health Department and others) for finalization of case.
(c) After preparation of the
case and authorization by Accounts Officer of PN-1 and PN-II as case may be),
it is forwarded to PN-III for writing up of authority, affixing embossed seal
on the authority and further dispatch to concerned District Accounts Office.
After this process, during 2002-2003 the sealed authority used to be sent to concerned District Accounts Office through registered/UMS
mail by the RD Section of AG Sindh Office.
d) After finalization of the
pension case (or preparation of pension payment sealed authority), case alongwith pension
payment sealed authority having the stamp “payment may be made after proper
identification of pensioner and production of A Certificate from Department
that he/she was a bonafide employee of __________” is
forwarded to concenred District Accounts Office from
where pensioner desire to received pension. In case of Hyderabad, case is
forwarded to Treasury at Hyderabad.
DISTRICT ACCOUNTS OFFICE HYDERABAD/ CONCERNED DAOs
a. When any mail received including pension
payment sealed authority at District Accounts Office is entered in inward
register, later on put up to District Accounts Officer who marks the same to
concerned Additional District Accounts Officer. Additional District Account
Officer then marks and forwards the same to concerned Auditor/Accountant who marks
an entry into Pension Authority register and forwards the same to concerned
Auditor, who deals with the particular department.
b. Auditor/Sub-Accountant maintains entry
of authority in Pension Payment issue Register, the Auditor prepares personal
file of the pensioner (which includes Authority, CNICs of pensioner and his
identifier, Disburser’s half portion, LPC, Photograph.
c. Auditor/sub-accountant checks vouchers
are in proper from, stamps are affixed. He ensured that pensioner and identifier
should appear in person for physical verification/identification, (clause
(f), rule 172, Auditor’s duties, pension Audit section, Chapter 8, Audit Manual
and Rule 329(1) of Treasury Rules of Federal government) refers. He then
forwards the same to the Accountant for examining/audit of documents and
physical verification of both pensioner and his identifier.”
8. Admittedly there is
commission of huge fraud and the ghost employees whose record is not available
in the office of Education and Health Department were paid pensions and
commutation through cheques in their names on the basis of false and fictitious
NICs. Fraudulent amount of Rs.32.16 Million was paid to 35 ghost pensioners.
From the material availbale on record, it transpired
that specific role has been assigned to each of the Petitioners, which is being
reproduced for the sake of convenience hereunder :-
“that the Investigation Report further reveals that
Abdul Ghani Lashari
(accused No.2) signed/approved 10x pension payment orders (PPOs) and monthly
pension bills of fake pensioners without physical verification of pensioner,
whereas according to procedure he was supposed to examine all the details of
bill/PPO, physically verify but he failed to do his duty and violated the Rule
177 of Treasury Rules.
that the Investigation Report reveals that Ghayasuddin (accused No.3) signed/approved 25x pension
payment orders (PPOs) and monthly pension bills of fake pensioners. However,
according to Rules he was supposed to examine all the details of bill/PPO, physically
verify pensioner but he failed to do his duty and violated the Rule 177 of
Treasury Rules.
that the Investigation Report further reveals that Ghulam Qadir Memon (accused No.4)
prepared 5x pension payment orders (PPOs) of fake pensioners without checking
original NIC and physical appearance of pensioner. However, according to Rules
& Regulations pensioner should appear in person in first time before the
officer preparing the PPO with original NIC but he failed to do his duty and
violated the Rule 172 of Auditor’s Duties Manual.
that the Investigation Report further reveals that Sardar Ahmed (accused No.5) prepared 17x pension payment
orders (PPOs) of fake pensioners without checking original CNIC and physical
appearance of pensioner. However, according to Rules & Regulations
pensioner should appear in person in first time before the officer preparing
the PPO with original NIC but he failed to do his duty and violated the Rule
172 of Auditor’s Duties Manual.
that the Investigation Report further reveals that Shamsuddin (accused No.6) prepared 13x pension payment
orders (PPOs) of fake pensioners without checking original CNIC and physical
appearance of pensioner. However, according to Rules & Regulations
pensioner should appear in person in first time before the officer preparing
the PPO with original NIC but he failed to do his duty and violated the Rule
172 of Auditor’s Duties Manual.”
The offence committed by the Petitioners comes within the purview of
white colour crime. The case of Imtiaz Ahmed versus the State reported in PLD
1997 SC 545 of the Full Bench of the Honourable Supreme Court comprising of Mr. Justice Ajmal Mian, Mr. Justice Saiduzzaman Siddiqui and Mr. Justice Abdul Hafeez Memon,
wherein it is observed that:-
“I may
observe that a distinction is to be made between an offence which is committed
against an individual like a theft and an offence which is directed against the
society as a whole for the purpose of bail. Similarly, a distinction is to be
kept in mind between an offence committed by a individual in his private capacity and an offence
committed by a public functionary in respect of or in connection with his
public office for the aforesaid purpose of bail. In the former cases, the
practice to allow bail in cases not falling under prohibitory
clause of section 497, Cr.P.C. in the absence of an
exceptional circumstances may followed, but in the latter category, the Court
should be strict in exercise of discretion of bail. In my view, the above
category of the offender belongs to a distinct class and they qualify to be
treated falling within an exceptional circumstances of the nature warranting
refusal of bail even where maximum sentence is less than 10 years’ R.I. for the
offence involved provided the Court is satisfied that prima facie, there is
material on record to connect the accused concerned with the commission of the
offence involved.
The
Courts should not be oblivious of the fact that at present Pakistan is
confronted with may serious problems/difficulties of national and international
magnitude, which cannot be resolved unless the whole Pakistani nation as a
united entity makes efforts. The desire to amass wealth by illegal means has
penetrated in all walks of life. The people commit offences detrimental to the
society and the country for money. Some of the holders of the public office
commit or facilitate commission of offences for monetary consideration. In the
above scenario the Courts approach should be reformat-oriented with the desire
to suppress the above mischieves. To achieve the
above objective, it is imperative that the Courts should apply strictly the
laws which are designed and intended to eradicate the above national evils but
at the same time, they are duty bound to ensure that the above approach should
not result in miscarriage of justice. It should not be overlooked that Article
9 of our Constitution, which relates to a fundamental right, guarantees life
and liberty of every person. Life, inter alia, includes the right to have
access to a fair and independent judicial forum for redress. A balance is to be
struck between national and individual interest/right.”
9. Contentions raised by the learned Counsel for the parties
require no emphasis that the tentative assessment is to be made for the purpose
of deciding a bail application and no in-depth appreciation or appraisal of
evidence is warranted at this stage. Even otherwise, we would refrain from
making any such observation which may cause prejudice to the case of any of the
parties at the trial. On a tentative assessment we find that the learned Deputy
Prosecutor General NAB has established that there are sufficient material/circumstances
which require consideration by the Trial Court after recording of evidence.
Learned Deputy Prosecutor General NAB has pointed out several documents
including NIC of ghost pensioners contending that they were fake
and forged ones on the basis of which an amount of Rs.32.16 was paid to ghost
pensioners.
10. The case law cited by the learned Counsel for the Petitioners
are distinguishable to the facts and circumstances of the cases. As pointed out
by the Deputy Prosecutor General NAB, the charge is to be framed and the Trial
of the case is likely to be commenced. Following the dictum laid down by the
Honourable Supreme Court in the case of Imtiaz Ahmed supra, which is fully
attracting to the facts and circumstances of the present cases, we are of the
opinion that the Petitioners have failed to make out the case of further
inquiry and are not entitled to be released on bail at this stage therefore, we
declined the concession of bail to the present Petitioners. However, we hereby
direct the Trial Court to conclude the Trial preferably within
a period of (90) days from receipt of this order without granting undue
adjournments and if the Trial Court fails to complete the trial within
stipulated time the Petitioners may approach to this Court for grant of bail.
11. Observations made
hereinabove are of tentative nature and the trial Court shall not be influenced
by any such observations.
J
U D G E
Karachi.
Dated:
______________ J
U D G E