IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Constt: Petition No.D-198 of 2016.
Present:- Mr. Justice Aqeel Ahmed Abbasi and
Mr.Justice Muhammad Faisal Kamal Alam, JJ.
FOR KATCHA PESH
Mr. Zulfiqar Ali Naich, Advocate for petitioner.
Mr. Rabait Ali Bhanbhro, SPP, NAB Sukkur.
Date of hearing : 03.5.2016.
MUHAMMAD FAISAL KAMAL ALAM, J., Through this constitutional petition, the petitioner is seeking his release on bail as he was arrested by respondents/NAB authorities in connection with a NAB Reference No.25 of 2016 (State Vs. Abdul Majeed Soomro and others) pending adjudication before learned Judge,
2. The petitioner has been shown as accused No.1 in above Reference, which is outcome of some initial complaint filed by one Mukhtiar Ali Balouch (Late) the then Manager Habib Bank Limited (HBL), F.F.C Township Branch dated 07.10.2008. In the said complaint, it was alleged that certain bank officials including the petitioner had committed corruption and were involved in corrupt practices, misused their authority and misappropriated/embezzled the funds in the said Branch by illegally opening an imprest Account of one customer, namely Doosan Heavy Industry which was maintaining an Account No.14847900000-03 at the said branch. It is also alleged that petitioner and other co-accused had transferred huge funds from above customer bank account to a fake/illegal imprest Account by drawing two cheques of same date, 24.3.2008 for an amount of Rs.25,90,000/- (Rs.2.6 Million approximately) and Rs.70,15,110/- (Rs.7.00 Million approximately), besides, the accused persons also issued two fake Letters of Guarantee to one M/s Allahyar and Company, both dated 21.7.2008 for an amount of Rs.17,67,426/- and 6,34,863/- respectively, favouring F.F.C Ltd (Fauji Fertilizer Company). The allegations further read that misappropriation was also made in the debited expenditure account in the shape of Rs.12,91,279, which was transferred it into the above fake imprest Account. Initially the inquiry was authorized by authorization letter dated 21.8.2009 and subsequently investigation was authorized, as mentioned in the Reference No. 25 of 2016 filed with the present petition as Annexure “A”. The authorization for investigation was given vide a correspondence dated 31.10.2011, whereafter it was transferred to some other Investigating Officer Mr. Najamuddin Junejo on 20.4.2012 and eventually vide the authorization letter dated 14.10.2015 the investigation was entrusted to Mr. Samar Hussain Qadri, Deputy Director/ S.I.O and finally the above Reference was filed in the Court of learned Judge, Accountability Court, Sukkur in the year, 2016 under Sections 18(g) read with Section 24(b) of NAB Ordinance, 1999 (NAB Law). The accused persons including the above named petitioner has been charged under Section 9(a) (iii), (vi and xii), punishable under Section 10 of the NAB Law.
3. Mr. Zulfiqar Ali Naich, learned Counsel for petitioner argued that the petitioner has denied his involvement in the offences in question and took the plea that despite his full cooperation with the respondents/NAB authorities, he was arrested without any lawful reason. The petitioner has further alleged that initial complaint lodged by above deceased Mukhtiar Ahmed Balouch was due to some professional jealousy and till date there is no tangible material/evidence available against the petitioner, justifying his implication in subject NAB Reference, which was admittedly filed after seven long years from the date of above mentioned Complaint. Petitioner has prayed for grant of bail on the medical ground as well, as according to him he is suffering from high blood pressure and heart ailment and does not have access to proper medical facility in the prison.
4. Mr. Rabait Ali Bhanbhro, learned Special Public Prosecutor NAB has opposed the plea for grant of bail to petitioner on the grounds that the petitioner being the Manager of the Branch was fully involved in the corruption and corrupt practices by misusing his authority and squarely falls within the mischief of above referred provisions of NAB Law. It was further argued by learned Special Prosecutor that due to acts of petitioner and co-accused, losses were caused to the public exchequer. It was contended that a specific role has been assigned to the petitioner and since trial is near completion, therefore, he is not entitled for any concession of bail.
5. During proceeding this fact has also come on record that the aforesaid entities, viz. Dosan Heavy Industries in whose name alleged fake account was opened and funds purported to have been transferred, or M/S Allah Yar and company or Fauji Fertilizer Company (FFC) in whose favour the fake Latter of Guarantees allegedly were issued, have not filed any complaint. Without touching upon the merits of the case, this aspect is also surprising that a person or entity who was deprived of such a huge amount (as mentioned above) did not come forward to lodge a complaint. Up till now the above entities, as it appears, have not been associated in the investigation. It has not been highlighted that how much amount has been landed in the pocket of present petitioner as beneficiary. Similarly the other inescapable aspect of the case is that no loss was/has been caused to public exchequer as mentioned in the above Reference, as admittedly Habib Bank Limited is a private bank. Similarly Fauji Fertilizer Company (FFC) in whose favour purported fake Letter of Guarantees were issued, have also not come forward with their claim or complaint. Even otherwise, validity of those Letter of Guarantees stood expired on 20.7.2009, as mentioned in its clause 3 and the said Letter of Guarantees are annexed with the Statement dated 3.5.2016 filed by Special Prosecutor NAB. It means under these instruments no fiscal fraud of offence of cheating was committed. All these factors indicate that still prosecution has to prove its case before the learned Trial Court (Accountability Court Sukkur) and therefore, the facts of the present case do fall within the established ingredients for grant of bail, that is, a case of further enquiry in order to prove the guilt of the petitioner. It is also a trite law that principles for grant of bail under Section 497 and 498 of Cr.P.C are applicable to the proceeding of the nature and therefore, the present petitioner has been granted bail in the sum of Rs.500,000/- (five lacs only) with PR bond in the like amount to the satisfaction of Additional Registrar of this Court as mentioned in the short order dated 03.5.2016.
6. Foregoing are the reasons for above mentioned short order. However, it is clarified that the observations made hereinabove are tentative in nature and would not in any manner influence the trial court (Accountability Court Sukkur). It is further clarified that if the petitioner attempted to take undue advantage of the concession of bail then learned trial court would be at liberty to pass any order as deem fit and necessary.