' ANWAR ZAHEER JAMALI, J.--- The petitioners in all the above titled petitions have been charged with the commission of offences punishable under sections 409, 420, 468, 471, 109, 34, P.P.C. Read with 5(2) P.C.A. II, 1947, vide F.I.R. No,16 of 2003, P.S. F.I.A. Corporate Crime Circle Karachi and presently they are facing trial in references Nos.5 and 6 of 2004 before the Accountability Court at Karachi. The petitioners in the first three petitions were admitted to interim pre-arrest bail vide orders dated 21-4-2004 and 29-4-2004 respectively while petitioner in the other two petitions Nos.D-627 and D-628 of 2004, who was arrested in the year 2003 is in custody since then.
2. The case of prosecution, as per the contents of F.I.R. No,16 of 2003 reads as under:-- "Consequent upon receipt of written complaint dated 11-4-2003 and 21-5-2003 from Raja Muhammad Nadir Ali. Cantonment Executive F.I.A. Karachi Zone, Karachi. Vide letter No,B-3331 dated 12-4-2003 and another Complaint No,DKZ/(S)CC/Enq14/2003/B-4670, dated 23-5-2003, Enquiry No,14 of 2003 was registered at F.I.A. CCC, Karachi and conducted by the undersigned. The contents of both complaints are reproduced as under:-- ' Complaint No,1 To, ' The Director F.I.A. Karachi Zone, Karachi.
' Sub: Embezzlement of Cantonment Fund in Faisal Cantonment Board, Karachi.
' Audit authorities of Defence Audit commenced the statutory audit of the Cantonment Board, Faisal, Cantt. Karachi, for the year of 2001, 2002. On conclusion of the audit, Audit Authority furnished Audit Objections (OLS) bearing Nos.47, 80, 81 and 90 to the management of Faisal Cantonment Board on 20-3-2003,stating therein that an amount of Rs,32,707,777 regarding receipt Books Nos.250. 256, 257, 259, 271 (Part), 275, 276 and 283 (part) have not been deposited into Cantonment fund. Consequently detailed scrutiny of the relevant record was conducted straightaway, which revealed that the objections are correct and valid. From the perusal of relevant record, prima facie, it was proved that the cashier of Faisal Cantonment Board Shahid Raza is the main person responsible for embezzlement. Resultantly he was served a show-cause notice. In this reply Shahid Raza admitting his guilt stated that in fact, said amount was not deposited by him as the same was taken away from him by the then Accountant/UDC, Qazi Muhammad Shamim. Presently posted as UDC Cantonment Board, Bannu with promise to return the same very soon. He further requested in his reply that matter may not be reported to high ups as he will return/deposit the amount in a couple of days after receiving it from the said Qazi Muhammad Shamim. Although the reply of Shahid Raza for deposit of said amount. During the intervening period he (Shahid Raza) deposited Rs,20,15,189 in Cantt. Fund in bits and pieces. Yet the balance amount of Rs,12,65,577 remains to be deposited/recovered to Faisal Cantonment Board (ML & C Deptt.). Concurrently the matter was reported to the Department of Military Lands and Cantonment Ministry of Defence Rawalpindi vide confidential letter No,OL(Con)25/02/2003, dated 29-3-2003 and vide letter No,OL
(Con) 25/02-2003 dated 7-4-2003 by the undersigned. In response to the said letters ML & C Department vide its letter No,3/9/LTAR/ML & C/2002, Government of Pakistan, Ministry of Defence (ML&C Department), Rawalpindi dated 8-4-2003 directed the undersigned to lodge First Information Report against culprits with the F.I.A., besides ordering a departmental inquiry.
' Photostat copy of the above-referred correspondence are enclosed for ready reference and record to facilitate the investigation."
' Complaint No,2 ' Sub: Embezzlement of Cantonment Fund in Faisal Cantonment Board, Karachi.
' Reference letter No,OL(Con)25/02/2003, dated 11th April, 2003 and HQML & C Department letter No,3/9/LTAR/ML & C/2002 dated 17th May, 2003.
' In continuation to above-referred correspondence on the subject cited above, it is brought to your kind notice that as a consequence of findings of the Department Enquiry Committee constituted vide ML & C Department Letter No,3/9/LTAR/ML & C/2002 dated 8-4-2003, it has further come to light that Qazi Muhammad Shamim Ex-Accountant/UDC (now posted to CB, Bannu) and Syed Shahid Raza Cashier in connivance with Mr. Razwan and Ex-employee of National Bank of Pakistan, COD, Branch have also embezzled of Rs,76,73,788.03 through fraud, forgery, tempering of official documents and fake band statements in the following manner:-- {{TABLE}} S.No, Description Amount Embezzled
(i) Amount received through Cantt.
4-B only Receipt Books Nos.290, 291, 229, 260, 280, 219, 294, 277 and 246 but not taken on the cash book and not deposited in the bank Amount taken on the cash book but not deposited in the bank, Rs,19,19,6777.11 (cash book balanced through Rs,56,82,110.92 fake bank statements). Only Grand total Rs,76,73,788.03 {{TABLE}} ' Consequently, explanation of Syed Shahid Raza, Cashier was called vide letter No,OL. (Con)
25/02/2003, dated 3-5-2003 and letter No,OL(Con) 25/02/2003 dated 5-5-2003 in replied whereof, he confessed his guilt and further contended that he had done it at the behest of Qazi Muhammad Shamim ExAccountant/UDC, who had taken away all the money from him and used him as his instruments in the embezzlement of the Public. Money.
' In the circumstances of the case explained above, it is requested to take legal action against the abovesaid officials besides recovery of embezzled amount of Rs,76,73,788.03 pertaining to the period from 1st July, 2001 to 10th April, 2003.
' Photo copies of correspondence referred to above are enclosed for your perusal, ready reference and record please.
' In the light of the above facts, the audit report, 4-B, Cantt. Receipt Book, Cash Book, subsidiary Register, and statements of witnesses, it reveals that the Cashier Syed Shahid Raza and Accountant Qazi Muhammad Shamim with the active connivance of each other misappropriated and embezzled the Cantonment Fund/treasury and caused a huge loss to the tune of Rs,102,98,512.03 in various heads of account during the last two years.
' During the course of enquiry, it also revealed that accused Muhammad Adil Khan, UDC, Cantonment Board Faisal, Karachi (now posted at Cantonment Board, Zhob, Balochistan), used the Cantt. 4-B, Receipt Books, which were issued in his name and also used the other Cant. 4-B Receipt Books, and collected Revenue/Tax from the Cantonment taxpayers and did not deposit the collected amount in Cantonment Fund, as is evident from the record, and embezzled/misappropriated the same.
' It further revealed during enquiry that accused Rizwan Ahmed Mani, Ledger Keeper, NBP, COD Branch, Karachi (now posted in NBP Malir Cantt. Branch Karachi) arranged/prepared the fake counterfeit casual statements showing the deposit of Rs,56,82,110.92 in the bank in order to compare accuracy and matching with general cash book Cantonment Faisal in his private capacity showing the forge as official statements issued by an authorized official of NBP, COD Branch, Karachi whereas the above amount of Rs,56,82,110.92 is not lying in the Cantonment Fund of Cantonment Board Faisal, Karachi.
' Hence the instant case is registered under the permission of DKZ Karachi, vide letter No,DKZ(S)/CC/Enq-14/2003/B-6102, dated 30-6-2003, against the officials of Cantonment Board, Faisal Karachi, namely Qazi Muhammad Shamim Accountant/Store Keeper/UDC (presently posted in Cantonment Board, Bannu, Syed Shahid Raza, Cashier/LDC Cantonment Board Faisal Karachi, Muhammad Adil Khan, UDC (now posted at Cantonment Board, Zhob, Balochistan), Rizwan Ahmed Jilani, Ledger Keeper, NBP, COD Branch, Karachi (now posted in NBP Malir Cantonment Branch, Karachi) and others under sections 409, 420, 468, 471, 108, 34, P.P.C. Read with 5(2), PCA-II, 1947.
Hence this case is registered and investigation is taken up by the undersigned."
3. We have heard Mr. Shahadat Awan, Advocate for petitioner Qazi Muhammad Shamim, Mr. Ghulam Mustafa Memon, Advocate for petitioner Abdul Ghaffar, Mr. Akhlaq Ahmad, Advocate for petitioner Muhammad Adil Khan and Mr. Amanullah Khan Special Prosecutor NAB on behalf of respondents.
4. Mr. Shahadat Awan contended that the petitioner Qazi Muhammad Shamim has been falsely implicated in the commission of offence which relates to embezzlement of certain sums at the Faisal Cantonment Board, Karachi. Even as per the contents of F.I.R. And other material collected by the Investigating Agency the only piece of evidence against petitioner Qazi Muhammad Shamim is the alleged statement of absconding co-accused Syed Shahid Raza, Cashier of Faisal Cantonment . Board at the relevant time, that he has paid the embezzled amount to the petitioner otherwise Qazi Muhammad Shamim was not involved in any manner whatsoever either in collecting the embezzled sums from the public/taxpayers or the process of its deposit in the bank, except signing some corresponding entries in the account books with reference to the bank vouchers. He further submitted that as per final charge-sheet, which was earlier submitted before the Special Judge Central-II, Karachi and other material no other evidence has been collected against the petitioner, therefore, his case needs further enquiry as to his guilt entitling him for grant of bail.
5. Mr. Ghulam Mustafa Memon, Advocate for petitioner Abdul Ghaffar advanced more or less similar arguments with reference to the alleged involvement of petitioner Abdul Ghaffar and contended that neither the petitioner Abdul Ghaffar was named in the F.I.R. Nor even his involvement was shown in any manner whatsoever in the first enquiry report or the interim challan submitted before the Special Judge Central-II, Karachi, dated 29-9-2003, but in the supplementary/final charge-sheet submitted on 6-1-2004 he has been shown involved in the commission of crime without any basis or material against him. His case, therefore, needs further enquiry as to his guilt and he is entitled for grant of bail.
6. Mr. Akhlaq Ahmed submitted that the petitioner Muhammad Adil Khan was also not nominated either in the F.I.R. Or in the interim charge-sheet submitted before the Special Judge, Central Karachi on 16-7-2003. In the report of enquiry conducted by the department also he was not found involved in the commission of crime, but subsequently, he has also been shown as one of the accused in the supplementary final charge-sheet dated 6-1-2004 with reference to the allegation that Receipt Book No,4-B was issued in his name on the basis of which certain sums were allegedly collected by him and Syed Shahid Raza Cashier. He contended that to save the persons actually involved in the commission of crime the petitioner has been made scapegoat, his guilt needs further enquiry and thus, he is also entitled for bail.
7. Mr. Amanullah Khan learned Special Prosecutor NAB in his reply arguments contended that jurisdiction under Article 199 of the Constitution may not be exercised by this Court in such cases in aid of injustice as the petitioners who are facing charges of embezzlement of Government money are not entitled for the concession of bail. Making reference to the case of Imtiaz Ahmed v. The State PLD 1997 SC 545, he further contended that even in the cases where an offence does not fall within the prohibitory clause of 497, Cr.P.C. The Court can decline to exercise its discretion in favor of accused by granting him bail. He also made reference to the provisions of NAB Ordinance to show that the applicability of sections 497 and 461, Cr.P.C. Has been specifically excluded which shows that in the cases pending before the NAB Court normally bail is not to be granted to an accused.
8. In reply to the last contention, learned counsel for petitioners have placed reliance upon the case of Chowdhary Zulfiqar v. The State PLD 2002 SCM R 546 and the other case of Haji Ghulam All v. The State 2003 SCM R 597 to show that the jurisdiction under Article 199 of the Constitution can be invoked in appropriate cases to avoid abuse of process of law and for granting bail in appropriate cases, even if pending before NAB Court.
9. We have carefully considered the arguments advanced by the learned counsel and perused the material placed on record with their assistance.
10. Admittedly the incident with reference to which F.I.R. No,16 of 2003 has been lodged on 3-7-2003, has occurred during the years 2001-2003 and such embezzlement was subsequently unearthed by audit party. Involvement of petitioner Qazi Muhammad Shamim at this stage is mainly based on the statement of co-accused Syed Shahid Raza as at the relevant time he was also holding the office of Accountant at Faisal Cantonment Board, Karachi. The allegations against the petitioner Abdul Ghaffar are also with reference to the signing of some account registers with reference to certain bank vouchers received by him which were purportedly managed by the main accused Syed Shahid Raza in connivance with co-accused Rizwan Ahmed Jilani, an employee of National Bank of Pakistan, who had purportedly issued such fake vouchers about deposit of embezzled sums in the account of Faisal Cantonment Board maintained at National Bank of Pakistan, Malir A Cantonment Branch. Material placed on record further reveals that neither the petitioner Abdul Ghaffar nor the petitioner Muhammad Adil Khan were shown involved in the commission of crime as per contents of F.I.R. Which was lodged by Sub-Inspector Rafatullah Khan, after the commission of such offence was unearthed by Audit party and case was investigated by him, nor even in the first challan submitted before the Special Court they were shown as accused involved in the commission of crime. Learned Special Prosecutor appearing on behalf of NAB has failed to show anything from the record whereby at this stage it can be reasonably said that prima facie petitioners are involved in the commission of crime for which they have been charged. Thus, in our view case of all the petitioners needs further enquiry as to their guilt. Moreover, the investigation of whole case has been completed and challan has also been submitted before the NAB Court, the case of prosecution against the petitioners will be based on documentary evidence, thus, there is no possibility of tampering with the evidence.
11. Foregoing are the reasons of our short order dated 24-8-2004 separately passed in each petition.