2021 P Cr. L J 378
[Lahore]
Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ
MUHAMMAD SARWAR---Petitioner
Versus
NATIONAL ACCOUNTABILITY BUREAU and others---Respondents
Writ Petition No. 67392 of 2019, decided on 21st January, 2021.
(a) National Accountability Ordinance (XVIII of
1999)---
----Ss. 9(a)(vi) & 9(b)-- Constitution of
Pakistan, Art. 199--- Constitutional petition---Pre-arrest bail, refusal
of---Mala fide, proof of---Departmental inquiry---Petitioner was senior auditor
in the office of Accountant General and was alleged to have been involved in
embezzlement of funds---Validity---During departmental fact-finding inquiry,
petitioner along with his co-accused of Accountant General Office during years
2015-2017, was found responsible for certifying 838 bills in contravention with
their legal responsibilities and duties and he was dismissed from
service---During investigation it was found that in the relevant period
petitioner made huge transaction of Rs.11,000,000/- in his salary account which
he could not justify---Petitioner admitted withdrawal of Rs.100,000/- by his
son via cheque from account of a co-accused as his share of scam on the asking
of petitioner---Nothing was available on record to show that implication of
petitioner in case was actuated with any mala fide intention or ulterior
motives---Petitioner was required by investigating agency for the purpose of
further investigation---Sufficient incriminating material is available on
record to connect petitioner with alleged offence---Pre-arrest bail was
dismissed in circumstances.
(b) National Accountability Ordinance (XVIII of
1999)---
----Ss. 9(a)(vi) & 9(b)--- Constitution of
Pakistan, Art. 199---Constitutional petition---Bail, grant of---Pecuniary
advantage, absence of---Petitioner was arrested by NAB in case of embezzlement
of funds in government office---Plea raised by petitioner was that one of his
close relative who was co-accused, got registered company in his name using his
identity card against amount which he had given to thatco-accused for
investment purposes---Petitioner further contended that he opened Bank account
and had authorized the co-accused to operate the same and did not know about
activities of the co-accused with regard to the company and Bank account which
was opened in his name--- Validity---Company and bank account of petitioner
were being operated by co-accused---Petitioner was arrested on 4-10-2019 and
during his physical remand of 68 days no incriminating material could be
recovered from him---Nothing was available on record to show that petitioner
had got any pecuniary benefit for the alleged scam---Petitioner had been behind
the bars since his arrest and his physical custody was not required to police
any more for further investigation---Bail was allowed in circumstances.
(c) National
Accountability Ordinance (XVIII of 1999)---
----Ss. 9(a)(vi) & 9(b)--- Constitution of
Pakistan, Art. 199---Constitutional petition---Bail, grant of---Medical
ground--- Petitioner was arrested by NAB for causing embezzlement of funds in
government office where he was working as cashier---Plea raised by petitioner
was that he was suffering from CVA with left hemiparesis---Validity---Jail
authorities reported that petitioner was a known patient of hypertension, diabetes
mellitus and CVA with left hemiparesis i.e. weakness of left upper and lower
limbs---C.T. Scan revealed right basalganglionic pathology---Petitioner was
being provided necessary treatment for the past 8 months but he was suffering
from paralysis and was bed-ridden who was unable to move, urinate, defecate or
even change his clothes---Health condition of petitioner was not only
deteriorated but also miserable---Petitioner was arrested on 12-11-2019,
process of investigation was complete and his physical custody was not required
for further investigation---Bail was allowed in circumstances.
Qazi
Misbah-ul-Hassan for Petitioner along with Petitioner in person.
Muhammad
Asad Manzoor Butt for Petitioner (in Writ Petition No. 15208 of 2020).
Muhammad
Zahid Mughal for Petitioner (in Writ Petition No. 13681 of 2020).
Syed
Qamar Ali Rizvi for Petitioner (in Writ Petition No. 21709 of 2020).
Barrister
Yasir Siddique Mughal, Special Prosecutor for NAB along with Ubaid Simon,
AD/IO/NAB.
ORDER
Through
this single order, we propose to decide the titled constitutional petition
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,
filed by petitioner Muhammad Sarwar seeking the premium of bail before arrest
and connected Writ Petition No.15208/2020 filed by Tahir Hussain, Writ Petition
No.13681/2020 filed by Muhammad Akram and Writ Petition No.21709/2020 filed by
Syed Ihsan Ali Shah whereby they have sought their release on post arrest bail
in Investigation No.1(61)HQ/961/NAB-L dated 07.01.2019.
2. Succinctly,
the accusation against the petitioners is that they, being employees of the
Accountant General Punjab, Lahore, in connivance with the officials of the
Directorate of Agriculture (Economics and Marketing) and Finance Department,
made fraudulently payments to different private vendors through the Director of
Agriculture (Economics and Marketing) while debiting different heads by passing
838 fake/fraudulent bills and cause loss of Rs.267.179 Million to the
government exchequer.
3. We
have heard learned counsel for the petitioners as well as the learned Special
Prosecutor for NAB and perused the available record with their able assistance.
4. First
of all, we take up the case of petitioner Muhammad Sarwar seeking the premium
of bail before arrest, who has been saddled with the responsibility that he,
being Senior Auditor in the office of the Auditor General Punjab, embezzled the
funds by processing and forwarding fake bills of Sumbal Traders, Sumbal Filling
Station and Tahir Traders. It was further alleged that he took 15 to 20% of the
bills as his share of embezzled amount in the shape of cash as well as cheques.
During the departmental fact-finding inquiry, the petitioner along with his
co-accused (officials/officers of Payroll-13) of the Accountant General Punjab
during years, 2015-2017, was found responsible for certifying 838-bills in
contravention with their legal responsibilities and duties and he was dismissed
from service. During investigation, it has been found that in the
aforementioned period, the petitioner made huge transactions of Rs.11,000,000/-
in his salary account which he could not justify. The petitioner has admitted
the withdrawal of an amount of Rs.100,000/- by his son namely, Ali Hassan
Sarwar via cheque from the account of co-accused namely, Syed Waqar Ali Shah as
his share of the scam on his asking and the said fact was further admitted by
his son before the investigating officer. Nothing is available on record to
show that implication of the petitioner in this case was actuated with any mala
fide intention or ulterior motives. The petitioner is more required to the
investigating agency for the purpose of further investigation. Sufficient
incriminating material is available on record to connect the petitioner with
the alleged offence and, thus, he is not entitled to the extra-ordinary relief
of pre arrest bail.
5. Petitioner
Tahir Hussain, who is seeking post arrest bail, has been saddled with the
responsibility that he, in connivance with his co-accused, got registered a
company in the name of Tahir Traders as vendor in Accountant General for supply
of goods to the Directorate of Agricultural (Economics and Marketing), Lahore
and Agricultural Department, Punjab, prepared fake bills/vouchers in the name
of Tahir Traders and got the same passed on account of fake bills, which were
en-cashed in his account during year, 2015-2017. The claim of the petitioner is
that his close relative namely, Syed Waqar Ali Shah got registered the
aforesaid company in his name by using his identity card against an amount
which he had given to said co-accused for investment purposes. He further added
that in this respect he opened his bank account and authorized Waqar Ali Shah
to operate the same. Further that he did not know about the activities of said
co-accused with regard to the company and bank account opened in his name.
During investigation, it was found that the company and bank account of the
petitioner were being operated by co-accused Syed Waqar Ali Shah. The
petitioner was arrested in this case on 04.10.2019 and during his physical
remand of 68-days, no incriminating material could be recovered from him.
Nothing is available on record to show that the petitioner had got any
pecuniary benefit from the alleged scam. The petitioner is behind the bars
since his arrest and his physical custody is not required to the police anymore
for further investigation.
6. Petitioner
Muhammad Akram was serving as Assistant Accounts Officer (AAO) with the
allocation of Cost Center No.LO 4250 (Directorate of Agriculture (Economic and
Marketing), Lahore. He passed/authorized fake bills of Directorate of the said
Department without making pre-audit checks as described in his job description
to forward bills to the Drawing and Disbursing Officer after its pre-audit. He
was arrested in this case on 18.11.2019 and during physical remand of 54-days,
no incriminating material could be recovered him. During investigation, no
specific liability could be fixed against the petitioner and not even a single
penny was found either transferred into his account or received by him in the
shape of cash. From the material available on record, the case against the
petitioner requires further probe and inquiry into his guilt by the learned
trial Court after recording the evidence.
7. The
role of petitioner Syed Ihsan Ali Shah in the alleged scam was that he, being
Cashier in the Directorate of Agriculture (Economics and Marketing) Lahore,
submitted bills and collected cheques from the office of Accountant General Punjab
and got registered the aforementioned companies in the name of his co-accused
for supply of goods to the Agricultural Department. He was further alleged to
have prepared forged and fake bills/vouchers in the name of Sumbal Traders,
Sumbal Filling Station and Tahir Traders and got the same passed with the
abetment/assistance of the officials of the Accountant General Punjab. The
petitioner has sought his release on post arrest bail on the medical ground and
in response thereto, the office of the Superintendent District Jail, Lahore has
submitted a report dated 08.01.2021 with regard to his health condition, which
clearly shows that the petitioner was a known patient of hypertension,
diabities mellitus and CVA with left hemiparesis i.e. weakness of left upper
and lower limbs. The CT Scan revealed right basalganglionic pathology. He is
being provided necessary treatment from the jail hospital since 13.05.2020,
however he is suffering from paralysis, bed-ridden, unable to move, urinate,
defecate or even change the clothes. It is clear from the aforesaid report that
health condition the petitioner is not only deteriorated but also miserable.
The petitioner was arrested in this case on 12.11.2019, the process of
investigation is complete and his physical custody is not required for further
investigation and, thus, he is also entitled to the relief claimed for.
8. In
sequel of above discussion, Writ Petition No.67392/2019 is without any merit,
the same stands dismissed. Ad interim pre-arrest bail already granted to the
said petitioner vide order dated 11.11.2019 is hereby recalled.
9. Writ
Petitions Nos.15208, 13681 and 21709 of 2020 are hereby allowed and petitioners
Tahir Hussain, Muhammad Akram and Syed Ihsan Ali Shah are admitted to
post-arrest bail subject to their furnishing bail bonds in the sum of
Rs.500,000/- (five lac) each with two sureties each in like amount to the
satisfaction of learned trial Court.
MH/M-21/L Petitions allowed.