Learned counsel for the plaintiff submits that he has filed suit for specific performance against the defendant No

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-3269, 3411, 3479, 3487

and 3666 of 2012

Ghulam Qadir Memon & others v. The State/NAB

Date

Order with signature of Judge

Before: Mr. Justice S. Hasan Azhar Rizvi

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing: 22.10.2012.

Mr. M. A. Kazi for petitioner in CP No.D-3269/2012

Mr. Muhammad Anwar Tariq for petitioner in CP D-3411/2012

Mr. Muhammad Rafi Kamboh for petitioner in CP D-3479/2012

Mr. Abdul Wahab Baloch for petitioner in CP D-3487/2012

Mr. Nasir Feroz for petitioner in CP D-3666/2012.

Mr. Noor Ahmed Dayo, Special Prosecutor NAB/The State.

-.-.-

Mohammad Shafi Siddiqui, J.- By this common order we dispose of five Constitution Petitions bearing No.D-3269, 3411, 3666, 3479 and 3487 of 2012 as the facts and circumstances arising out of the Reference No.4 of 2010 (State v. Ghulam Muhammad Brohi & others) pending before the learned Judge Accountability Court No.1 Karachi.

In terms of Reference, referred above, investigation report and inquiry/fact finding report it revealed that inquiry/investigation regarding the alleged fake pension cases related to the District Accounts Office Hyderabad and Accountant General Office Karachi started somewhere in 2004 which is followed by a formal authorization for investigation to Deputy Director NAB by the Director General NAB. In terms of the investigation earlier, the warrants of arrest were issued and the petitioners were arrested on or about 13.04.2012 and the Reference was filed on 31.05.2012 before the Administrative Judge NAB under section 18(g) read with Section 24(b) of National Accountability Ordinance, 1999.

Learned counsel for the petitioner submitted that earlier the petitioners have filed an identical petition for the same relief bearing CP No.D-1826, 1827, 1829 and 1830 of 2012 which were disposed of vide order dated 02.07.2012 passed by this Court by which order bail was refused to the petitioners, however, the directions were issued to the trial Court to conclude the trial of the accused persons within a period of 90 days. Pursuant to such directions charge was framed on 17.04.2012 under section 9(a)(vi) of the National Accountability Ordinance, 1999 and the petitioners pleaded not guilty and claimed to face the trial. Until filling of these petitions the trial Court examined two important witnesses out of 15 prosecution witnesses namely Rasheed Ahmed (Accounts Officer, Accountant General Sindh, Karachi, PW-1) and Altaf Hussain Mangi, (District Accounts Officer Hyderabad, PW-2).

Per learned counsel there is enough material now available for consideration of the present Constitution Petition wherein the petitioners claim to be released on bail. He submitted that as far as other witnesses are concerned, perusal of their statements under section 161 Cr.P.C. reveals that none of the witnesses U/S 161 Cr.P.C.have deposed against the petitioners and the statements of remaining witnesses do not connect the petitioners with the alleged offence. He further submitted that in the light of the judgment reported in 1993 P.Cr.L.J. 781, 2006 SCJ 603 and PLD 2012 Karachi 225 fresh petition is maintainable on fresh grounds.

Learned counsel in support of these petitions submitted that there are no reasonable ground that the petitioners have committed any offence as enumerated in subsection (i) to (xii) of Section 9(a) and (b) and so also section 10 of National Accountability Ordinance, 1999 as the petitioners are neither beneficiary of alleged amount nor received any pecuniary advantage nor misused their authority for the preparation of pension cases. He submitted that in an identical case the Hon’ble Supreme Court has acquitted the accused persons when they were neither the beneficiary nor received any material gains and placed his reliance on 2008 SCMR 196 and 2005 SCMR 648 and PLD 2004 Karachi 224. He submitted that the rule of benefit of doubt which is described as a golden rule is essential rule of prudence which cannot be ignored while dispensing justice in accordance with law. He submitted that perusal of the deposition of two material witnesses that have been examined by the trial Court reveals that none of the petitioners/accused could be roped in the offence as made out in Reference No.4. He, therefore, prays that the petition may be allowed and the petitioners may be released on bail.

Mr. Nasir Feroz appearing in C.P No D-3666/12, Muhammad Anwar Tariq appearing in CP No.D-3411 of 2012, Mr. Muhammad Rafi Kumboh appearing in CP No.D2479 of 2012 and Mr. Abdul Wahab Baloch appearing in CP No.D-3487 of 2012 have substantially adopted the arguments of learned senior counsel Mr. M.A Kazi. They, however, added that it is well known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probability rather finding of guilt should rest squarely and firmly on the evidence. They further added that the procedure regarding processing of pension cases is mentioned however on perusal of Para 2 of the Reference revealed that neither proper procedure is given nor the duties/responsibilities are assigned properly to the respective officers of DAO Office Hyderabad and some of the very influential and important officers have been left by the I/O in the chain of preparation of pension cases, they contended that this is a Reference on pick and choose basis. They relied upon the case of Kazi Allah Bux v. the State reported in 2010 SCMR 1178.

Mr. Noor Ahmed Dayo, learned Special Prosecutor NAB, has opposed the petitions and submitted that 13 more material witnesses are yet to be examined as such petitioners are not entitled for the grant of bail at this stage, more importantly when the order in the earlier petitions regarding the conclusion of the trial was passed.

We have heard the learned counsel for the petitioners as well as special prosecutor NAB and perused the record. It appears that two material witnesses during the period from disposal of the earlier petitions and till filing of these petitions were examined.

The prosecution witness No.2 Altaf Hussain Mangi in his cross examination at typed page 11 has categorically admitted that:

“It is also correct to suggest that the accused Ghulam Qadir Memon petitioner is not beneficiary of the alleged amount in this case.”

It is further observed that both these witnesses have ruled out allegations set out against the petitioners in the subject reference. They have categorically admitted that the petitioner in CP No.3269 of 2012 was appointed as Sub-Accountant and at the relevant time was working in pension section-II as a Sub-Accountant but not as an auditor and he distinguishes the duties of the auditors from that of Sub-Accountant. He admitted that the offence which is the subject matter of the Reference No.4 of 2012 is a job of accountant and Additional District Accounts Officer ADAO(III) to verify all the documents of the pensioners and also to make physical verification of the pensioners. He also admitted that the petitioner was posted in Pension Section-II and he was only required to fill in the blanks. He further admitted that the Rule 172, 177 and 329 of the Audit Manual and Treasury Rules do not apply to the petitioner/Sub-Accountant. It is also admitted that the petitioner is neither beneficiary of the alleged amount nor he has any role in preparation of such alleged fake documents. Out of 35, it is claimed by the witness, three cases relates to the petitioner in CP No.D-3269 of 2012 in which he has only filled the blanks of the forms. It is thus observed that some of the important witnesses, perhaps above the rank of Sub-Accountants, have been left out by the I/O who perhaps may have some role to play in the preparation of alleged fake documents which were used/ utilized for the disbursement of pension in the accounts of those fake persons. Hence, it appears to be a case of pick and choose and that too not of relevant persons.

We have also gone through the proper procedure for District Accounts Officer which is required for processing the pension cases at DAO office and it appears that the Sub-Accountants have no role to play in such process. It was ultimately appears to be ADAO-III who is required to physically verify the pensioners and their identifier, their NIC in original, their signatures, name, photo, dependents and other related particulars and finally sign the bill and put his embossing seal with signatures. The allegation in the reference that the petitioners were involved in misappropriation of pension payment order of fake pensioners without checking original NIC and physical appearance thus appears to be of no relevance in view of the procedure which is required and admitted by prosecution.

In terms of the investigation report it reveals that Ghulam Qadir Memon prepared pension payment orders of fake pensionaries. Apparently it seems that the preparation of pension cases is the job of Pension Section-I and it seems that the head of this Section was Senior Auditor Ghulam Hussain Shah who is not nominated as accused in this case as admitted. All these Sub Accountants have filled the blanks of pension payment orders which is admitted by PW-2 Altaf Hussain Mangi. He further admitted in his cross examination to Mr. M.A. Qazi as under:

“----it is also correct to say that pension payment papers are prepared by the concerned department and are submitted before the vigilance cell of our office.------------------------------------------ It is also correct to say that there are two sections in our office which relates to pension payment orders. Mr. Ghulam Hussain Shah is holding the post of Senior Accountant since the year 1991 till to date. It is also correct say that it was obligation and function of Ghulam Hussain Shah, Senior Auditor to scrutinize all the pension documents before further process it.--------------------It is also correct to say that in the cases mentioned from serial No.33 to 35 in seizure memo Ex.10/36 it is only mentioned that accused Ghulam Qadir Memon filled the form only and had processed the papers.”

It appears that it is not the function of the petitioners to check the CNIC and physical appearance of the alleged pensionaries. However, prima facie, it appears to be the duty of ADAO and Accountants under Rule 177 of Treasury Rules to check the CNIC and mark his physical appearance. The said Rule 177 is reproduced as under:-

“ The bill, cheques or other document presented as a claim for money shall be received and examined by the Accountant and then laid before the treasury officer who if the claim is admissible, authority good, the signature and counter signature were necessary genuine and in order and the receipt a legal quittance, will sigh the order for payment at the foot of the bill etc---taking care to adopt the precautions prescribed in clause (iii) of rule 138. Careful attention must also be given to the instruction contained in these rules regarding the completion of bills, cheques, etc., presented in support of claims against the government.”

It is further admitted by PW-1 Rasheed Ahmed and PW-2 Altaf Hussain Mangi that it is not the duty of the petitioners to check the CNIC and physical appearance of the pensionaries. They have also admitted that Ghulam Hussain Shah was responsible to send all documents for verification to the ADAO and that he was also under obligation to verify the documents and physical appearance of the incumbent and after his satisfaction used to pass orders on it and used to send it to the Pension Department. In the same way PW-1 has also admitted that the physical identification of pensionaries and checking CNIC is the function of the ADAO. As far as the application of Rule 172 is concerned it applies to the Auditor and cannot apply to a sub Accountant which designation was held by these petitioners at the relevant time and as such there is no question of violation of Rule 172 of the Audit Manual & Treasury Rule. This fact is categorically admitted by PW-2 in his cross examination to Mr. M.A. Qazi. It is also admitted that the duties of the Auditor are different from those of Accountant. PW-1 has also categorically admitted that as per procedure sealed authority from the Accountant General Sindh was to be sent to DAO Hyderabad where it is entered in the inward register and that these sealed authorities after their entery in the ledger used to present before the DAO who on its opening mark it to concern ADAO after checking it and then the ADAO mark it to the Senior Auditor Pensions Section. PW-2 Altaf Hussain Mangi also admitted that Rules 172, 177 and 329 of the Audit Manual & Treasury Rule does not apply to the accused/Sub Accountant.

It is thus seems to be an admitted position that all sealed authorities in 35 pension cases were issued by the Accountant General Sindh Office which bears their stamps so also the seal of the Accountant General Sindh Office. Such sealed authorities were received at the DAO Office Hyderabad who were required to process sealed pension authorities. Thus the origin of these authorities is Accountant General Sindh Office who has issued it under their seal and signature who have been purposely or unintentionally not considered to be investigated.

Reliance was placed by the learned Counsel for the petitioner on the case of Muhammad Idrees Ghori & others reported in (2008 SCMR 1118), Mansoorul Haq Vs. Government of Pakistan (PLD 2008 SC 166), Pir Mazharul Haq Vs. The State (PLD 2005 SC 63) and Ali Nawaz Shah Vs. The State ( PLD 2003 SC 837).

2008 SCMR 1118

“------The striding of law to bring an action within its compass is in conflict to the concept of fair treatment, therefore it is primary duty of the Court to ascertain whether the alleged offence was outcome of an act in violation of some law which was be termed as actus reas of the crime (guilty act) and if this essential element of crime is missing, the breach may not subject to the sanction of criminal law, therefore, a person who is blamed to have committed an offence if is not accountable in criminal law for his action, he cannot be subject to the prosecution. The mens rea (Guilty mind) is another essential component of crime without proof of which a person cannot be held guilty of an offence and similarly without the proof of concurrence to commit the crime, the offence is not complete.”

PLD 2005 SC 63 &

PLD 2003 SC 837

“12----this is well known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt should rest squarely and firmly on the evidence. It is the fundamental rule of criminal administration of justice that basic onus always rests on the prosecution to prove the guilt of the accused and the special provision can neither be constructed to mean that the onus of the prosecution to prove the guilt is shifted to the accused to prove his innocence or a presumption of guilt can be raised against an accused without discharge of initial burden by the prosecution. The only exception to the above rule is special law can be that on the discharge of the initial burden to proving guilt to the prosecution through evidence, the onus is shifted to the accused to disprove the allegation and if he fails to discharge his burden satisfactorily, a presumption of guilt can be raised against him.---“

The tentative assessment of the evidence lead us to conclude that after examining the material witnesses there are no reasonable grounds that exist to believe that the accused persons have been guilty of an offence, as suggested. We on a tentative evaluation of the evidence and the material placed before us reached to a conclusion that it is a case of further inquiry as none of the prosecution witnesses involved any of the petitioners/accused. There is no direct or indirect evidence and as such the benefit of doubt must go to the accused/petitioners.

It is fundamental principal of Jurisprudence that an accused is presumed to be innocent until his guilt is proved. The accused does not have to prove his innocence rather it is for the prosecution to prove his guilt. If the prosecution fails in its duty which never shifts to defence, accused is entitled to benefit of doubt. Even a critical assessment of the evidence of the two material prosecution witnesses lead us to the conclusion that prima facie the offence that has been made out in the Reference, the accused/petitioners have no role. It is rather the role of those persons who have not been involved or who have been left out by the investigating officer.

As far as the objection of the learned Special Prosecutor NAB is concerned that in terms of the order passed in the earlier petitions filed by the accused/ petitioners, the petitions could not be heard and decided until and unless the recording of evidenced is concluded. In our order on 10.07.2010 in earlier petition we directed the trial Court to conclude the trial preferably within 90 days from receipt of order and if trial Court failed to complete trial within stipulated period/time the petitioners may approach to this Court for grant of bail. Since the trial is not completed within 90 days, therefore, present petitions were filed on 13.09.2012 and were heard and decided on 22.10.2012 by our short order and after more than 90 days. We may observe that in terms of the judgment reported in 1993 P.Cr.L.J. 781, there is no express provision of law under which the petitioner is required to raise all the grounds before the trial Court or in earlier application which subsequently urges before the High Court or any other concerned Court.

Similarly in case of Allah Dino v. the State (2006 S.C.J. 603) it was held as under:-

“Learned counsel for the petitioner stated that he had instructions not to press this petition because in view of the progress which has been in the case before the trial Court, the petitioner contemplates to repeat bail application for his release on bail. However, he sought indulgence of this Court that if said petition is application is moved that may be disposed of by the trial Court independently without being influenced by the earlier order.”

Similarly, in the case of Muhammad Zareen v. the State reported in PLJ 2009 Sh. Court (AJ&K) 105, it has been held as under:-

“Therefore, the subsequent bail application was competent and the learned Court below was legally obliged to examine the evidence produced by the prosecution along with the proposed evidence which prosecution intends to produce gains the petitioners but the trial Court failed to apply its mind while exercising its discretion.”

Accordingly, the petitions were allowed and the petitioners were admitted to bail subject to their furnishing surety in the sum of Rs.500,000/- each and P.R. bond in the like amount to the satisfaction of the Nazir of this Court vide short order dated 22.10.2012.

These are the reasons for reaching short order whereby bail was granted to the petitioners vide order dated 22.10.2012.

JUDGE