IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Bail Application No.D-19 of 2022

 

    

 

    Present;

    Mr. Justice Arshad Hussain Khan

                            Mr. Justice Amjad Ali Sahito, JJ.

 

 

 

 

Applicant.                                Abdul Shakoor son of Abdul Khalique Soomro through Syed Zaeem Hyder Advocate.

 

 

Respondent.                            The Chairman National Accountability Bureau, through M/s Mujeeb-ur-Rehman Soomro and Bahawaluddin Special Prosecutor NAB, Sukkur.

 

 

Date of hearing & Order          29.03.2022

                             

 

 

O R D E R

 

ARSHAD HUSSAIN KHAN, J;   Applicant/accused (Abdul Shakoor son of Abdul Khalique Soomro) through instant Cr. bail application has sought post-arrest bail in National Accountability Bureau [NAB] Reference No.16 of 2019, wherein the above Applicant is shown as Accused No.10, pending adjudication before learned Accountability Court at Sukkur. The Applicant’s bail application filed before the Accountability Court Sukkur has been dismissed vide order dated 09.12.2021.   

 

         

2.      As per the aforesaid NAB reference, it is revealed after investigation that the Applicant/accused being the official of Education Department Kashmore, in connivance with accused No.1 to 8 and accused Nos.9 to 22 is involved in illegal issuance and withdrawn of excessive salary in violation of all codal formalities and law which resulted loss to the Government Exchequer to the tune of Rs.5,95,23,526/- (rupees Five Crores, ninety five lacs, twenty three thousand, five hundred and twenty six). It is stated that the accused persons have violated the codal formalities to give undue benefit to the accused Nos.12 to 22 who are beneficiaries of the proceeds of these cheques, hence, they are guilty of the corruption and corrupt practices as envisaged in Section 9(a)(iii)(vi) &(xii), punishable under Section 10 of the National Accountability Ordinance, 1999 [NAO] and schedule thereto.

 

3.      Learned Counsel for the Applicant states that applicant being gazette officer is not custodian of the record and misplacement of the record by the lower staff. He further contended that applicant had not signed any cheque and whole forgery was committed by Gul Muhammad, Ex-Head Clerk who withdrawn all amount into the account of their relatives i.e. Accused No.12 to 22 which they already admitted even in investigation. He further submits that co-accused having similar role had already been enlarged on bail by this Court hence, rule of parity is also applicable to the case of present applicant. He contended that present Applicant/accused is not involved in illegal withdrawal of excessive salary, besides, he is a senior citizen.

 

 

 

4.      Learned Special Prosecutor NAB has opposed the grant of bail and stated that sufficient material is available against the Applicant, showing his nexus to the offence committed.

 

 

 

5.      We have considered the arguments advanced by learned counsel for the applicant/accused and learned Special Prosecutor NAB as well as perused the material available on the record.    

 

6.      It is imperative to discuss a brief background. As per the Investigation Report, case was initiated suo moto by DG NAB in March, 2013, as an offshoot from an Inquiry against officers/officials of District Accounts Office, Umerkot. After completing formalities the case was transferred to NAB Sukkur in 2015. Inquiry was authorized vide letter dated 28th April 2016 and was converted into investigation by the correspondence of Ist June, 2017. NAB consumed four years just in inquiry and the investigation and the Subject Reference was filed in the year, 2019 being Reference No.16 of 2019. Earlier pre-arrest bail was granted to number of petitioners/accused persons including the present applicant by this Court 16.03.2021, subject to depositing of the individual liability calculated by Respondent-NAB; however, it was challenged before the Honourable Supreme Court, but without any success and subsequently a Review was filed in this Court which also was dismissed. In the intervening period amendments have been made in NAO, inter alia, empowering the Accountability Courts to decide the bail applications of accused. Consequently, present Applicant filed a Criminal Bail Application before the learned Accountability Court but the same was dismissed, by Order dated 09.12.2021 (at page 11 of the Court File).

 

7.      The modus operandi of the offence committed as mentioned in the Investigation Report (IR) is that the group of family members who are employees in Education Department (Taluka Kashmore) were illegally paid huge amount of funds. The allegation against the present applicant that he being ADEO/TEO (Male) Kashmore is involved in offence of corruption and corrupt practices in connivance of Gul Muhammad and others and he having DDO powers allowed withdrawal of huge amount of Government funds from the Cost centers he was responsible for and from the ADO Male Bank account operated in NBP Kashmore though in case of encashment of cheque(s) of heavy amount the DDO should bring the cash from the bank himself instead of giving authority to any other employee, but  means rea of present Applicant whether withdrawal of amount of Government funds were with dishonest intent or due to procedural lapse, is yet to be determined at Trial. It is also stated in (IR), that one Gul Muhammad who is working as Head Clerk in Education Department has withdrawn huge amount of funds and credited those funds in to his personal account. The table mentioned with regard to transaction of accused Gul Muhammad also shows that all cheques were not signed by the present accused but by different officers, out of whom Rafique Ahmed has already passed away. 

 

8.      The statement of the Branch Manager (Ghulam Abbas) of National Bank of Pakistan before the Investigation Officer is on record, wherein he has mentioned the names of the beneficiaries in whose account proceeds of various cheques were landed/credited; most of the disputed transaction were transferred in the bank account of one of the accused Gul Muhammad. Name of the present Applicant is not mentioned in the list of beneficiaries in whose bank accounts the proceeds of cheques in dispute have landed/credited. Record further shows that different DDO were posted during the period when alleged offence was committed and all the cheques in question were not signed by the present Applicant/accused.

 

9.      As the sequel of the above discussion, we are of the considered view that Applicant has succeeded to make out his case for further inquiry. Even otherwise, the culpability of accused in connection with the offence committed, is yet to be finally determined. The applicant/accused has been in continuous custody since his arrest and is no more required for any investigation nor the prosecution has claimed any exceptional circumstance, which could justify keeping him behind the bars for an indefinite period pending determination of his guilt. Moreover, co-accused having similar role have already been granted bail by this court; rule of parity is also applicable in the present case. Reference in this regard can be placed in the case of Muhammad Daud and another v. The State and another [2008 SCMR 173].

 

Hence, considering all these factors, we vide order dated 29.03.2022 extended benefit of bail to the Applicant subject to his furnishing solvent surety in the sum of Rs. Two Million and PR bond in the like amount to the satisfaction of learned Trial Court.

 

 

10.    Needless to mention here that any observation made in this order is tentative in nature and shall not affect the determination of the facts at the trial or influence the trial court in reaching its decision on the merits of the case. It is, however, made clear that in the event if, during proceedings, the applicants/accused misuse the bail, then the trial court would be competent to cancel their bail without making any reference to this Court.

Above are reasons for the short order dated 29.03.2022.

   

 

   J U D G E

 

 

                                                                                          J U D G E

 

 

 

 

 

 

 

 

 

 

 

Ihsan