' ANWAR ZAHEER JAMALI, J The petitioners in the above numbered two constitutional petitions are accused in Reference No,10 of 2006 dated 4-9-2006 pending before the Accountability Courts, Sindh, Karachi. They have, therefore, approached this Court through these petitions for grant of bail in such reference.
2. In Reference No,10 of 2006, filed against 14 accused petitioners have been arrayed as accused Nos.2, 3 and 4. The allegations against the petitioners in the first petition are that in the year 2002- 03 they, being holders of public office, were posted at District Accounts Office, Sukkur. , During such period in connivance with the other accused, against the approved (121) cases of House Purchase Advance/House Building Advance (hereinafter referred to as 'HPA/HBA'), pertaining to Education Department, District Sukkur amounting to Rs, 13.734,205, they had fraudulently extended such benefit to 714 persons, thereby out-pocketing the Government in the sum of Rs, 103,896,995 and causing loss of Rs,90,162,790 to the State exchequer. Further allegations against petitioner Ghulam Haider Jamroo are that, working as Accountant during the period from 24-7-2002 to 6-1-2003 and from 28-4-2003 to 30-6-2003 be checked and processed 538 cases for this purpose, out of which 464 cases were forged. 'Similarly, the petitioner Badruddin Makhdoom, in his capacity as Accountant, during the period 7-1-2003 to 26-4-2003 checked and processed 149 cases out of which 116 cases were forged. The allegations against the other petitioner Ghulam Sarwar Soomro are that while working as Senior Auditor throughout the financial year 2002-03, he checked and processed 699 cases out of which 583 were forged. It has also been stated in the reference that such illegal and fraudulent activities were undertaken by the petitioners because they had already received 10% commission from each applicant and thus they omitted to perform their legal function for the consideration of illegal monetary gains. It has further been stated in the reference that during the investigation of 714 such cases by the team of experts of Accountant General Sindh by way of comparison from genuine documents it was found that only 121 cases, out of 714 cases were genuine having seal and signature of competent authority while the remaining 593 cases of HPA/HBA were found fake and forged.
3. Mr. Nurudding Sarki, learned counsel for the petitioner in C.P. No,D-732 of 2006 has vehemently contended that the approval of 714 cases at the level of petitioners under the HPA/HBA Scheme and release of payment to the applicants in the sum of Rs, 10,38,96,995 is not disputed, which amount is now being recovered from the concerned applicants in accordance with law, thus due to the alleged illegal acts of the petitioners no financial loss has been caused to the national exchequer. He further contended that as per the case of respondent, recovery of payments made to 80 applicants by alleged forged and fake documents, amounting to Rs,8603565 has already been enforced, which clearly demonstrates that no financial gains have been drawn by the petitioners for themselves for approval of such cases under HPA/HBA scheme. In such circumstances allowing the custody of the petitioners to the NAB authorities during the trial of their Reference could be harsh and unjust. He, therefore prayed that the petitioners may he admitted to bail during the pendency of Reference No, 10 of 2006 before the Accountability Courts. In Support of his submission learned counsel placed reliance on the following cases:--
(i) (Khan Asfandyar Wali v. Federation of Pakistan) (PLD 2001 SC 607);
(ii) (Ghulam Ali v. State) (2003 SCM R 597);
(iii) Abdul Aziz Khan Niazi v. State) (PLD 2003 SC 668)
4. Mr. Abdul Wahab Baloch, learned counsel for the petitioners in C.P. No,D-908 of 2006, has adopted the arguments of Mr. Nuruddin Sarki Advocate for the petitioner in C.P. No,D-732 of 2006 without any further addition.
5. Mr. Shafaat Nabi Khan Sherwani learned DPG, NAB, has strongly opposed grant of bail to the petitioners. He made specific reference to the provisions of section 9(b) of the National Accountability Bureau Ordinance, 1999, (hereinafter referred to as the 'Ordinance, 1999') and contended that the petitioners being guilty of causing heavy financial losses to national exchequer should not be allowed the relief of bail in exercise of jurisdiction by this Court under Article 199 of the Constitution, which is purely discretionary and equitable in nature. To add force to his submissions and to amplify the conduct of a public servant, particularly, in the financial matters, he made reference to paragraph 209 from the judgment of the Honourable Supreme Court of Pakistan in the case of Khan Asfandyar Wali v. Federation of Pakistan reported in 2001 SC 607, which reads as under: - "209. The seven principles of Public Life stated in Volume-I of Lord Nolan's Report (1995) titled; "Standards in Public Life", are also needed to be kept in view. The principles are as follows: ' The Seven Principles of Public Life ' Selflessness: Holders of public office should take decisions solely in terms of the public interest.
They should not do so in order to gain financial or other material benefits for themselves.
' Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that influence them in the performance of their official duties.
' Objectivity: In carrying out public business, including making public appointments, awarding contracts or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
' Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
' Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the . Wider public interest clearly demands.
' Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
' Leadership: Holders of public office should promote and support these principles by leadership and example."
6. Further dilating upon the powers of this Court under Article 199 of the Constitution, in the matter of grant of bail to the accused in the references pending before the Accountability Courts he made reference to the cases reported as Riaz Qayyum (Mrs.) v. State (2004 SCM R 1889) and State v. Haji Kabeer Khan (PLD 2005 SC 364) and prayed for dismissal of these petitions.
7. In the case of Mrs. Riaz Qayyum (supra) it was held that elaborate sifting of evidence could not be made at the time of deciding bail application but only tentative assessment of the same was to be made. With this observation, and finding, prima facie case against the accused for causing loss to the Government exchequer bail to the accused was refused. In the case of Haji Kabeer Khan (supra), it was held that in the cases under the NAB Ordinance, 1999 an accused would not be entitled to grant of bail on medical ground, if he was getting proper treatment either in hospital or in jail. It was further observed that in criminal administration of justice each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction for this purpose independently.
8. We have carefully considered the arguments advanced by the learned counsel for the respective parties, perused the case- law cited by them and the material placed on record, more particularly the material as regards the investigation made by the NAB authorities, which has eventually resulted in filing of Reference No, 10 of 2006 against the petitioners and other accused persons. The perusal of such documents reveals that for the financial year 2002-03, the Finance Department, Government of Sindh, had approved only 121 cases of HPA/HBA pertaining to Education Department. District Sukkur, amounting to Rs, 13,734,205. But against such limited approval of cases for the relevant period present petitioners being accused Nos.2 to 4 in Reference No, 10 of 2006 passed 714 cases for a sum amounting to Rs, 103896995. This fact is not denied even by the petitioners, so also the fact that subsequently applicants in 80 cases have refunded an amount of Rs,8,603,565 to the treasury. The investigation of this case further reveals that for extending relief in favour of large number of applicants from the Education Department for grant of HPA/HBA the petitioners acted in a negligent and irresponsible manner in the performance of their duties and in this manner deprived the Government of a sum of Rs,90,162,790 by way of HPA/HBA to the applicants from Education Department against the approval of only 121 cases. The petitioners have recently been sent-up for trial in the said Reference No, 10 of 2006 and they have not brought on record any plausible explanation to justify their deeds in this regard. In such circumstances the allegations contained in the reference against them cannot be brushed aside lightly.
9. Indeed jurisdiction of this Court under Article 199 of the Constitution to grant bail to the accused involved in the NAB cases is not barred by virtue of section 9(b) of the Ordinance, 1999 in view of the dicta laid down in the case of Khan Asfandyar Wali (supra) and subsequent amendment to section 9(b) itself, but before exercising our constitutional jurisdiction for this purpose, we have to see whether such powers should be exercised so liberally as to totally nullify and make the provisions of section 9(b) redundant which on one end makes all the offences triable by the Accountability Courts non-bailable and on the other hand bars the applicability of sections 497, 498 and 561-A, Cr.P.C. By the Courts for grant of bail to accused involved in such cases.
10. Keeping in view the above discussion and the fact that the petitioners have been assigned the pivotal role in the commission of crime, they have been recently sent-up for trial before the Accountability Court through Reference No, 10 of 2006; and prima facie prosecution has shown their involvement in the commission of crime, causing huge financial loss to the national exchequer, we are not inclined to extend the relief of bail to them at this stage accordingly, these two petitions are dismissed in limine.