ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

C.P.No.D-4056 OF 2014           

________________________________________________________

Order with signature of Judge

 

                              Present

                           Mr. Justice Muhammad Ali Mazhar

                      Mr. Justice Shaukat Ali Memon

 

Muhammad Afzal            Vs.           NAB & others

 

Date of hearing     26.01.2015

 

Mr.Muhammad Ishaque Ali, Advocate for the Petitioner 

 

Mr.Noor Muhammad Dayo, ADPG NAB

 

                                                …….

Muhammad Ali Mazhar J. This constitution petition has been brought to seek bail and challenge the warrant of arrest dated 1.7.2014. In the meanwhile NAB filed a Reference No.13/2014 in the Accountability Court.  The petitioner is accused No.3 in the Reference and has been assigned role in clause (k), (l) and (m) of Para 8 of the Reference, which are reproduced as under:-

 

“(k) That the accused No.3 Muhammad Afzal Ex-Cashier and Ex-Incharge AFU is responsible for shortage of cash from October, 2012 to March, 2013, by depositing less cash in accounts of Collector of Custom than the actual collection

 

(l) That he in connivance with other accused persons was involved in clearance of goods declaration on credit basis.

 

(m) That he was involved in issuance of pay orders in favour of Collector of Custom without actually debiting in the account No.1003-6 and 1004-6 or even without having the balance in above said accounts. The said amount was later debited from other accounts through accused No.1 Muzafar Ali Zuberi, accused No.2 Shakeel Ahmed and accused No.5 Waqas Ahmed Khan.”

 

 

 2. The learned counsel for the petitioner argued that the petitioner was posted at AFU Booth on October, 2011 for one month only and thereafter he was again posted from mid of December, 2012 to 15th March, 2013. He served for a total period of four months thereafter he was posted at NBP Airport Branch. On 15.3.2013 the petitioner was placed under suspension and issued a show cause notice by the NBP. Out of seven charges, six were related to the delay in crediting and debiting the respective accounts and the clearance of goods declaration of PIAC. The petitioner denied the charges mentioned in the show cause notice and took the defence that posting at AFU Booth was only for four months. Learned counsel further argued that there was no shortfall for the period during which the petitioner was posted at AFU Booth. The amount was deposited in favour of Pakistan Customs for which they had complete accounts of taxes and duties in respect of cleared goods declaration thus in absence of any complaint from Pakistan Customs the allegations against the petitioner are false. If any amount was misappropriated, it should not have been escaped the attention of audit department but nothing was transpired in the audit report. He further argued that the petitioner was arrested on 1st July  2014 while the charge was framed by the learned trial court on 2.10.2014. The prosecution has cited calendar of more than seventeen witnesses and so far the trial court has been able to record examination-in-chief of one witness only. The investigation has been completed and no purpose would be served to retain the accused in custody for indefinite period especially where the pace of trial is much slow and considerable time will be consumed to conclude the trial. The petitioner is rotting behind the bar since 1st July, 2014 and in seven months examination-in-chief of one witness has been recorded while under Section 16 of NAO, 1999 court has to proceed the case from day to day and dispose of the same within thirty days which period has lapsed.

 

3. The learned ADPG NAB argued that the petitioner has played important role which is reflecting from paragraph (8) (k) (l) and (m) of the Reference. He was posted as AFU Booth Incharge where he committed the offence of corruption and corrupt practices. Being Ex-cashier and Incharge AFU he was responsible for shortage of cash from October 2012 to March 2013 by depositing less cash in the accounts of Collector Customs then the actual collection. During inquiry it revealed that the bank officials and some other unauthorized persons were involved in illegal banking by clearance of goods declaration on credit basis, pocketing daily cash collection, shortage of cash and illegal debiting. The learned ADPG NAB also referred to statements of Muhammad Hassan Branch Manager, Allauddin Cashier/OG-II and Abu Sufyan, Cashier/OG-II, NBP, Airport Branch, Karachi recorded under Section 161 Cr.P.C. by Senior Investigation Officer and argued that in view of these statements the petitioner is not entitled to be released on bail.

 

4. Heard the arguments. The role of the petitioner has been defined in sub-paragraph (k), (l) and (m) of paragraph (8) of the Reference that he was responsible for shortage of cash from October, 2012 to March, 2013 by depositing less cash in accounts of Collector of Custom than the actual collection and he was involved in issuance of pay orders in favour of Collector of Custom without actually debiting in the account No.1003-6 and 1004-6 or even without having the balance in above said accounts. The said amount was later debited from other accounts by  accused No.1 Muzafar Ali Zuberi, accused No.2 Shakeel Ahmed and accused No.5 Waqas Ahmed Khan. Most of the allegations have been leveled in the reference against Waqas Ahmed Khan who is an absconder in this case. The petitioner claims to have been posted on AFU Booth only for four months while the NAB asserts that he is responsible for the short fall transpired for the period of six months. No specific amount is shown against the present petitioner which he allegedly misappropriated or embezzled from AFU Booth. Even in the Summary of liability mentioned in paragraph 9 of the Reference, the shortage of cash deposits has been shown for month of January 2012 to March 2013 without any break up for which the petitioner is being held liable or responsible at this stage.

 

5. The learned ADPG NAB referred to 161 Cr.P.C. statement of Muhammad Hassan who narrated almost similar allegations but he himself admitted that he took the charge as Manager of the concerned Branch on 12.3.2013 from Shahid Hussain while the details of alleged illegal debiting mentioned in the table are pertaining to the period from 4.7.2012 to 7.01.2013. He referred to Waqas Ahmed Khan, a private person but further stated that since his posting he has not seen Waqas Ahmed Khan. He also stated that during proceedings of NAB it revealed that Waqas Ahmed Khan was involved in clearance of G.D. on credit basis and collection of the same was pocketed. He further revealed that Waqas Ahmed Khan used to prepare illegal debit and credit scroll and his handwriting has been identified on the pink sheets of collection. The same person also highlighted the role of Nadeem Enterprises and firmly stated that the employees of AFU Booth in collusion with M/s.Nadeem Enterprises were engaged in parallel banking. It is further stated that Nadeem Enterprises derived unlawful benefit from the public amount and then failed to repay the same and caused loss to the public exchequer and the said amount is still recoverable from Nadeem Enterprises. It is quite strange to note that despite clear statement in which the complainant  highlighted the name of Nadeem Enterprises involved in the scam, the Reference filed by NAB does not refer to anything in relation to the allegation against Nadeem Enterprises. The ADPG NAB also failed to point out anything as to what action was taken against “Nadeem Enterprises”. Even paragraph 11 of the Reference is completely silent where the NAB has fixed joint liability of misappropriated/embezzled amount. Allauddin in his 161 Cr.P.C. statement stated that he was posted at AFU Booth. He also talked about Waqas Ahmed Khan and his changed standard of living beyond his means. It is further stated that Waqas Ahmed Khan used to call himself nephew of Ex-Branch Manager Shahid Hussain but he was made Incharge by Muzaffar Ali Zuberi for all AFU Booth. He was also shown various vouchers on which he recognized the handwriting of Waqas Ahmed Khan including debit and credit vouchers and pink sheets. Abu Sufyan in his statement also discussed living standard of Waqas Ahmed Khan. He was posted at AFU Booth by the Ex-Branch Manager Nafees Ahmed Khan. He further stated that few persons were working on daily wages including Waqas Ahmed Khan who were deployed at AFU Booth by Muzaffar Ali however, no record of these persons is available in NBP. After considering the aforesaid statements as well as the arguments of learned counsel we are of the firm view that in order to thrash out the liability and the role of each individual accused person, recording of evidence is necessary and at this stage it can be safely concluded on the basis of available record and material collected by the prosecution that the role of present accused requires further inquiry.

 

6.  Further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that deeper appreciation of evidence is not permissible at bail stage simultaneously it is also well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair an expeditious trial without any unreasonable and inordinate delay. The intention of law is that the criminal case must be disposed of without unnecessary delay it is not difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries. Reference can be made to orders authored by one of us (Muhammad Ali Mazhar-J) in the case of Ali Anwar Ruk, Abdul Jabbar, Syed Mansoor Ali and Sardar Amin Farooqui reported in 2014 SBLR 766, PLJ 2014 Karachi 251=2014 CrLJ 777, PLJ 2014 Karachi 254=2014 UC 784 and PLJ 2014 Karachi 268.  

 

7. Under Section 16 of the NAO, 1999 it is clearly provided that notwithstanding anything contained in any other law for the time being in force an accused shall be prosecuted for an offence under this Ordinance in the court and the case shall be heard from day to day and shall be disposed of within thirty days. We have already observed that the accused was arrested on 1st July, 2014 while the charge was framed in the month of October, 2014 and examination-in-chief of one witness has been recorded so far which negates the spirit of Section 16 of NAO, 1999. The learned ADPG NAB neither controverted this position nor did he explain the reasons of delay nor attributed any cause of delay to the petitioner or his counsel. The hon’ble Supreme Court in the case of Muhammad Nadeem Anwar v. NAB reported in PLD 2008 SC 645 held as under:-

 

“National Accountability Ordinance, 1999 was promulgated in order to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority, misappropriation of property, taking kickbacks, commissions and for matters connected and ancillary or incidental thereto. Object of National Accountability Ordinance, 1999, in its preamble, is to provide expeditious trial of scheduled offences within the shortest possible time. Accused was entitled to expeditious and inexpensive access to justice, which included a right to fair and speedy trial in transparent manner without any unreasonable delay. Such intention had been re-assured in Section 16 of National Accountability Ordinance, 1999, laying down criteria for day to day trial and its conclusion within thirty days. Such object did not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to accused. Truth or otherwise of charges leveled against accused could only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. Supreme Court converted petition for leave to appeal into appeal as accused were entitled to grant of bail pending conclusion of trial.”

 

In the case of Muhammad Jahangir Badar vs. NAB, reported in PLD 2003 SC 525, the apex court held as under:-

 

“ 7. There is no cavil  with the proposition that the State machinery has a right to arrest the culprits and put them to trial for the purpose of establishing guilt against them but it has not been bestowed with an authority to play with the liberty and life of an accused under detention because no one can be allowed to remain in custody for an indefinite period without trial as it is fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for the completion of the trial. As in the instant case under Section 16 (a) of the Ordinance the court is bound to dispose of the case within 30 days. It may be noted that inordinate delay in the prosecution case if not explained, can be considered a ground for bailing out an accused person depending on the nature and circumstances on account of which delay has been caused as has been held in the case of Riasat Ali v. Ghulam Muhammad & State (PLD 1968 SC 353).”

 

8.  As a result of above discussion, the petitioner (Muhammad Afzal) is granted bail in NAB Reference No.13/2014 subject to furnishing solvent surety in the sum of Rs.10,00,000/- (Rupees ten hundred thousand only) with P.R. Bond in the like amount to the satisfaction of the Nazir of this court. NAB may also approach to the Ministry of Interior, Government of Pakistan for placing his name on Exit Control List. The petitioner shall also surrender his original valid passport in the trial court. The above findings are tentative in nature and shall not prejudice the case of either party. The petition is disposed of.

Judge

 

Judge                     

Karachi:

Dated. 6.2.2015