ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P No.D- 1294 of 2015

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Order with signature of Judge

Present

Mr. Justice Muhammad Ali Mazhar

Mr. Justice Muhammad Iqbal Kalhoro

Abdul Bari………….…………….Versus…….…………...NAB

Date of hearing 24.07.2015

M/s Hussain Bux Baloch and Farkhunda Mangi advocates for the petitioner.

Mr. Mohammad Altaf Awan A.D.P.G NAB.

Ms. Seema Razzaq Morejo I.O of the case.

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Mohammad Ali Mazhar J. The petitioner has applied for post arrest bail in NAB Reference No.16 of 2014 in which 16 accused have been implicated by the NAB and present petitioner is accused No.4. The main allegations are against the accused No.1 Zubair Ali Almani but in the NAB Reference, the role of each accused has been defined separately in different paragraphs.

2. The Investigation report reveals that the various transactions were made in various bank accounts as a result of misappropriation from N.B.P City Branch Pano Aqil. The investigation report further reveals that accused No.1 during 2011 to August 2014 deposited various cheques in his own personal account and different persons’ accounts maintained at NBP City Branch Pano Aqil aggregating to Rs.687.4 million in his personal account and other accounts of his family and friends maintained at various Banks of Sukkur Region. The role of present petitioner is defined in para-8 of the NAB Reference which reads as under:-

“8. That the investigation report reveals that Abdul Bari Mangi (accused No.4) was posted in the NBP Pano Aqil Branch from 04.06.2012 to 26.02.2013. He has signed RBV singly and jointly without proper verification of instruments/vouchers on different dates which shows that he did not perform his duties and malafidely assisted the accused No.1 for smooth conduct of this fraud. The entries which were passed/signed by the accused No.4 is given in IR para-30.”

3. It is a fact that initially in the same crime, the charge sheet was submitted in the Special Court (Offences in Banks), in crime No.51 of 2014, however, NAB approached the Special Court for the transfer of case to Accountability Court under Section 16-A of the NAO, 1999.

4. Learned counsel for the petitioner argued that the allegation against the petitioner only show the mere negligence but no mala fide on his part. He further argued that entire documentary evidence has been collected and if the petitioner is granted bail, there would be no question of tampering the record. It is further contended that the petitioner was not the responsible for the alleged transaction as he was working as O.G-I, NBP City Branch, Pano Aqil and he had no concern with the alleged transaction or embezzlement. He lastly contended that the role of present petitioner requires further enquiry as to whether he has committed negligence in his official duties or acted with mala fide intention which will be decided after trial.

5. On the contrary, learned A.D.P.G NAB with the assistance of I.O argued that the petitioner committed misuse of his authority and failed to perform his duties vigilantly and also acted malafidly to benefit the main accused No.1. He has also shown us para-30 of the investigation report in which it is stated that the petitioner signed the Responding Branch Voucher (R.B.V) singly and jointly without proper verification of instruments on different dates, therefore, it appears that he failed to perform his duties and malafidely assisted the main accused for smooth conduct of the fraud in question.

5. Heard the arguments. We have examined the role of present petitioner. It is also matter of fact that normally in the NAB Reference where so many accused are involved, the role of each accused is defined separately and we are also sanguine that in white collar crimes, the court has to see the role of each accused separately and in our understanding, the rule of consistency does not apply in stricto senso. Today, the bail petition of main accused Zubair Ali Almani bearing C.P No.D-6254 of 2014 was also fixed but after arguing at some length, his learned counsel informed the court that earlier main accused Zubair Ali Almani approached for the plea bargain to the NAB authorities but his application was dismissed and he did not press the bail petition for the reason that accused No.1 will again approach NAB authority for entering into plea bargain as earlier his plea bargain application was dismissed due to non-mentioning of correct figure of liability. The allegation against the present petitioner is that he signed the R.B.V singly and jointly without proper verification of instruments hence he failed to perform his duties. In para-30 of the investigation report, the NAB has only shown three R.B.V which were verified by the present petitioner. To a question raised by this court to A.D.P.G NAB as well as I.O of the case whether during investigation any amount was disclosed which was pocketed by the petitioner or the amount deposited in his bank account or he has purchased properties during that period in which he has been found involved negligent in his duties? The answer was in negative and according to the I.O no such incriminating material was found or collected against him during investigation of the case. The allegation against the petitioner that he did not perform his duties and acted with mala fide intention requires further enquiry. The case of negligence in performing duties does not mean always that person was involved in corrupt practice or corruption. The allegation that he acted with mala fide intention also requires further enquiry to prove his guilt. The element of mense rea cannot be decided at this stage. The three R.B.V verified by the present petitioner are to be threshed out by the learned Accountability Court during evidence to decide his role and guilt in the crime in question.

6. As a result of above discussion, petitioner Abdul Bari is granted bail in NAB Reference No.16 of 2014 subject to furnishing solvent surety in the sum of Rs.500,000/- (rupees five lacs only) with P.R. bond in the like amount to the satisfaction of Nazir of this Court. The Petitioner will also deposit his original valid passport with the Nazir of this Court and shall not leave the country without permission of the trial court. The above observations are tentative in nature and shall not prejudice the case of either party in the trial Court. The petition is disposed of.

JUDGE

Aadil Arab