ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-1370 of 2013

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Date               Order with signature(s) of Judge(s)

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          For Katcha Peshi

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23.04.2013

          Mr. Hassan Khursheed Hashmi, Advocate for Petitioner

          Mr. Noor Muhammad Dayo, A.D.P.G., N.A.B. along with Najamuddin Abro, I.O., N.A.B.

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NAIMATULLAH PHULPOTO, J.--       Through this constitution petition, petitioner Shaikh Muhammad Nadeem seeks post arrest bail in the investigation against the officials of N.I.T., N.I.B. and Crescent Commercial Bank and others.

 

          Brief facts as disclosed in the constitution petition are that petitioner was Assistant Vice President of National Investment Trust Limited. It is alleged that petitioner along with some officials of N.I.T., N.I.B. Bank and Crescent Commercial Bank has been involved in embezzlement/misappropriation of two dividend warrants belonging to two unit holders, namely, Barkat Ali and Nadeem Barkat Ali amounting to Rs.16.18 million. It is further alleged that by using fake application, purported to have been made by genuine unit holders fraudulently converted option from Cumulative Investment Plan into Income Distribution Warrants, which allowed the dividends to be withdrawn in the form of cash rather dividends in the shape of N.I.T. units. It is further stated that these IDWs were subsequently encashed by opening two fake accounts in the name of unit holders, one at N.I.B. Bank, D.H.A. Branch and other at Crescent Commercial Bank, Foundation Branch Saddar, Karachi. On 02.10.2007 incident came to the knowledge of N.I.T. and on 10.10.2007 an initial inquiry report was submitted. On 11.10.2007 N.I.T. had written a letter to the State Bank of Pakistan and informed about the offence and requested for help to recover the misappropriated amount from the Banks concerned and also the relevant documents used to fraudulently open the accounts in the two banks. On 08.11.2007 State Bank of Pakistan replied to the aforesaid letter and advised the N.I.T. to report the fraud to the National Accountability Bureau for necessary action in the matter. On 05.12.2007 N.I.T. filed a complaint with the N.A.B. for holding inquiry into the matter. On 08.01.2008 an inquiry was authorized and on 27.05.2009 Inspector General of Police authorized investigation against the officials of the N.I.T., N.I.B. and Crescent Commercial Bank, including the petitioner. As per initial investigation report only Kamran Zafar, Manager, Crescent Commercial Bank was nominated as accused. It is stated in the petition that name of the petitioner was not mentioned in the said report. On 20.09.2012 after six years, initial investigation report was submitted. The Inspector General of Police while exercising his powers under sections 18(e) and 24(a) of the National Accountability Ordinance, 1999 issued warrants of arrest for alleged offence of the corruption and corrupt practices under section 9(a) of the said Ordinance. On 15.03.2013 the petitioner was arrested from the N.A.B. office where he had voluntarily appeared and joined the investigation. On 16.03.2013 the petitioner was produced before the learned Administrative Judge, Accountability Court, Karachi where Najamuddin Junejo, I.O. of N.A.B., obtained his 15 days’ remand for further investigation. On 30.03.2013 investigation officer submitted the report before the learned Administrative Judge, Accountability Court, Karachi that investigation in respect of the petitioner was complete and his custody was no more required and petitioner was remanded to the judicial custody, hence bail application is moved.

 

          Mr. Hassan Khursheed Hashmi, learned advocate for the petitioner has contended that present petitioner has only sent parcel, containing 1669 IDEs, including the two IDWs in question with the help and assistance of N.I.T. staff through courier to the Zonal Manager, N.I.T. Lahore. He has further submitted that concerned officer of N.I.T. Lahore received the parcel, opened the same and found two IDWs in the names of Barkat Ali and Nadeem Barkat Ali missing. Instead of informing the head office or his branch Manager he remained silent and proceeded on leave. It is also argued that the petitioner is not the beneficiary in any manner from the alleged offence. Investigation is also complete, petitioner/accused is no more required for further investigation. Case against petitioner/accused requires further inquiry. In support of his contentions he relied upon the following reported cases:

 

(i)                Muhammad Saeed Mehdi vs. State & 2 Others (2002 SCMR 282)

(ii)              Abdul Aziz Khan Niazi versus the State (PLD 2003 Supreme Court 668)

(iii)            Muhammad Zafar Maniar Vs. Shahzad Ahmed and another (2011 MLD 602)

 

          Mr. Noor Muhammad Dayo, learned Additional Deputy Prosecutor General NAB halfheartedly opposed the bail and submitted that in case bail is granted to the petitioner, the petitioner may be directed to furnish huge surety.

 

          We have carefully heard the learned counsel for the parties and perused the relevant record.

 

          Record reflects that Najamuddin Abro, investigation officer NAB Sindh had submitted report before the learned Accountability Court at Karachi dated 30.03.2013 and learned trial Court has mentioned in the order that accused is no more required for investigation and he was remanded to the judicial custody. Mr. Dayo admitted that case is based on documentary evidence, there is no question of tampering with the evidence. Petitioner has been interrogated and he has been remanded to the jail. Petitioner’s handwriting was also not found on IDWs. Prima facie, role of the petitioner/accused was that he had dispatched the parcel, the truth or otherwise of allegations can only be determined at the trial by the Accountability Court after recording evidence. Suffice it to say, that prima facie petitioner does not appear to be guilty of misuse of official position or to obtain illegal gain for himself. Rightly reliance has been placed upon the case of Muhammad Saeed Mehdi vs. the State (2002 SCMR 282), in which the Honourable Supreme Court of Pakistan has held as under:

 

“As regards the nature of accusation against the petitioners, the truth or otherwise of such allegations can only be determined at the trial by the Court after deep analysis of the evidence that may be adduced by the parties. Without going deeper into the merits of the prosecution case, it may suffice to observe that prima facie the petitioner does not appear to be guilty of misuse of official position or misappropriation of public funds to his own use or in order to cause monetary loss of public funds or to obtain illegal gain for himself or for any of his relatives or friends.”

 

          For the above stated reasons while relying on the above cited authority, case against the petitioner/accused requires further inquiry. Concession of the bail is extended to the petitioner/accused. However, following the dictum laid down by the apex Court in the case of Shamrez Khan petitioner is directed to deposit a sum of Rs.5.000(M) in cash with the Nazir of this Court which would be invested for the ultimate disbursement as directed by the trial Court and further sum of Rs.5.000(M) as surety to the satisfaction of the Nazir of this Court.

 

          Needless to mention that observations mentioned hereinabove are tentative in nature, the trial Court should not be influenced while deciding the case on merits.

    

                   JUDGE

 

JUDGE

 

Gulsher/PA