1. ' KHAWAJA NAVEED AHMED, J.---In the present case petitioner Farooq Ahmed Hashmi was booked under Reference No.61 of 2007 filed by NAB (Sindh) and was arrested on 3-11-2007.
2. ' The main allegation in the reference is that the applicant was appointed as Clerk in Liaquat Medical College in Hyderabad in the year, 1959 and thereafter was promoted as Senior Clerk in 1962. In 1983 he was promoted as Assistant Accounts Officer and subsequently he retired on 14-11- 2001 in the same capacity. The case of the prosecution is that during the years, 1985 to 2005 he had received an amount of Rs.4,83,41,476 (Rupees forty million, eighty three hundred forty one thousand, four hundred and seventy six only) on account of salary/allowances, income from Shoaib Clinic on prize bond and sale of property etc. The case of the prosecution is that the amount of salary received by the petitioner from the government comes to the tune of Rs.2,79,79,693 (Rupees twenty million, seventhly nine hundred seventy nine thousand, six hundred and ninety three only). It is alleged that the properties held by the petitioner are disproportionate to his known sources of income. The properties are in the names of his wife, sons, daughters and daughters-in-law and in his own name as well. The Investigation Officer has challaned the petitioner in Clause-5 of section 9(a) punishable under section 10(9) of National Accountability Ordinance, 1999.
3. ' We have heard Mr. Nehal Hashmi, Advocate for the petitioner and Mr. Ainuddin Khan, learned ADPG, NAB.
4. ' During the course of arguments the learned ADPG has drawn our attention to the two forged documents which were annexed with the petition as Ann. 'B' and 'C'. These both documents are purported to have been signed by Lieutenant Gen. (Retired) Shahid Aziz, Ex-Chairman, NAB, Islamabad and Major General Mukhtar Ahmed, Director General, NAB, Sindh Region. The learned ADPG in his comments had mentioned that these both documents are forged. We have asked the learned ADPG to produce the routine signatures of both the officers, which he did and as such we ourselves compared the signatures and it was established that both the documents are forged.
5. We made enquiry from Mr. Nehal Hashmi, Advocate as to from where he had obtained these documents. After making the enquiry from his client he had informed the Court that one Mr. Zubair.
6. Advocate of Hyderabad had provided these documents to the petitioner, who in turn had given it to Mr. Nehal Hashmi believing the same to be correct and as such Mr. Nehal Hashmi had filed the same with this petition. This was very, very serious matter. The signatures of two high officers were forged therefore, Court had summoned the petitioner from Jail as well as Mr. Zubair, Advocate from Hyderabad. We have examined the petitioner on oath and have provided the opportunity. Of cross-examination to Mr. Zubair, Advocate against whom the allegation was made. The learned ADPG has also cross-examined the petitioner. The statement of the petitioner is reproduced as under:-- "I had engaged Mr. Muhammad Zubair, as my advocate while I was at Hyderabad, to assist me in my case which was being investigated by National Accountability Bureau ("NAB"). I had paid Rs.500,000 to Mr. Muhammad Zubair, advocate, towards his professional fee. Mr. Muhammad Zubair, advocate, told me that he is a special person of NAB Authorities and he had also shown him a book written by him under the name of National Accountability Bureau Ordinance, 1999. This book is presently in my hand.
7. ' Note. The witness has shown the book to this Court which after seeing has been returned to him.
8. ' Mr. Muhammad Zubair, advocate has also given his visiting card to me. I produce enlarged photo- stat copy of the same as Exhibit "A". He told me that you have paid money to me, therefore, no body will call you now. Thereafter I had received letter No. 1228/IW-1/CO-B/T-7/NAB-Sindh/1079, dated April 11, 2007 from Squadron Leader DD-Coord (IW-1). I had handed over the said letter to Mr. Muhammad Zubair, advocate and told him that you had assured me that now NAB will do nothing but I am still receiving letters. I produce the letter as Exhibit "B". Mr. Muhammad Zubair, had dictated me a letter, which was sent by my wife Mst. Nighat Parveen, to Squadron Leader (IW-1), NAB, Sindh, in which my wife had pleaded that my husband is patent of diabetes, heart and hypertension and as such he is on bed and is unable to attend the office of NAB. Mr. Muhammad Zubair, advocate, himself had taken this letter from me and delivered the same to NAB authorities and thereafter no body had summoned me. I produce the said letter as Annexure "C". The letter Annexure "B" purported to be signed by Lieutenant General (Rtd.) Shahid Aziz. Chairman, NAB, Islamabad and letter Annexure "C" purported to have been signed by Major General Mukhtair Ahmed. Director General, NAB, Sindh Region, were given to me by Mr. Muhammad Zubair, advocate in October, 2006 and I was satisfied that my case has been closed. When, Mehmood Ahmed, Investigating Officer of this case, came to arrest me, I handed over both the letters to him informing him that my case has been closed and why is he arresting me? Mr. Muhammad Zubair, advocate, after giving these letters to me had told me that I have to file a Constitutional Petition in the High Court in order to calm down NAB authorities and for that purpose Mr. Muhammad Zubair, advocate, had received a sum of Rs.235,000 from me towards professional fees and had engaged one advocate Mr. Aslam, who had filed that petition in the High Court. I do not know the fate of that petition. At the time of my arrest I had handed over the copy of that petition to Mehmood Ahmed, Investigating Officer of this case. After my arrest, Mr. Muhammad Zubair, advocate, had approached my son and told him not to show letters Annexures "B" and "C" to the NAB authorities but by that time I had already handed over these letters to Mehmood Ahmed, Investigating Officer of my case. Mr. Muhammad Zubair advocate and Mehmood Ahmed, Investigating Officer, present in Court are the same persons.
9. Cross to Mr. Muhammad Zubair, Advocate.
10. ' I have not stated the above facts in my statement before NAB. I had given money to you in presence of my wife, who is now sitting in the Court for saving my skin from NAB authorities. After I paid you money I did not receive notice from NAB and I was happy and satisfied that you are a true person and you have done the job. Only once a telephone of Haji Khan was received and I informed to you whereupon you had told me that now no phone will come again. I had also sworn an affidavit at your instance for the purpose of obtaining documents from NAB authorities. It is incorrect to suggest that you have never appeared for me as my lawyer in any case. Voluntarily states that I had come with you at NAB office and had paid you money in my car outside NAB office as you had stated that you have to pay the money inside. It is not correct that you had not been my lawyer in any case and only on one occasion when an affidavit in constitutional petition No.1508 of 2006 was sworn by me in the High Court you had called me in High Court. Voluntarily states that you called me twice in the High Court and I signed the documents. It is incorrect to suggest that I am deposing at the instance of my lawyer, who had tutored me this story to tell in the Court. It is incorrect to suggest that I am deposing falsely.
11. Cross-examination to Mr. Ainuddin Khan, ADPG, NAB.
12. ' I was arrested on 3-11-2007. It is correct that at the time of my arrest I had handed over Annexures "B" and "C" to the Investigating Officer, which he had taken in his possession and seized according to law. I had not shown these documents to any other officer of NAB prior to the date of my arrest.
13. Both these documents were given to me by Mr. Muhammad Zuabir, advocate, who is present in Court today."
14. The petitioner in his defence has prepared parallel account book through which he has tried to justify the possession of the assets and has shown the sources from where he had generated the funds, which according to NAB are disproportionate to his known sources of income. While accused was produced in Court we had an opportunity to see him. He is an old man of above seventy years of age. He was looking very weak. He was breathing with difficulty due to old age or most probably due to weather condition, which was very cold on that day. We have observed that while climbing the witness box he was not able to walk properly and he had to hold the wall of the box while climbing only one stair of the witness box. This case has been registered after seven years of his retirement from service. We do not know what was the motive behind this case and who was instrumental in getting a retired government officer involved in a case after seven years of his retirement specially when his children are working with him in different institutions and they are living in a joint family system. It has come on record during arguments that the petitioner and his sons and daughter and daughters-inlaws are running their private school as well as private clinic and are generating income for which the petitioner has prepared parallel books of accounts. This Court is not expert in accounts and cannot go into technicalities and leave it open for the trial Court to assess and evaluate the evidence. Tentatively we have reached on the conclusion that the petitioner was not holding any post throughout his career in government service through which he could use his discretion or ask for bribe from any one or somebody would have bribed him for taking any favourable decision from him. In fact he was not holding any decision making post A during the tenure of his service. Moreover we have seen from the reference that at the time of arrest the petitioner was still working at the age of 70 year in Liaqat University of Medical Health and Science on contract basis since 1-12-2001 as a Budget Officer. We have drawn an inference that a man who is doing job even 10 years after his retirement from the government job can justify his income if chance is given to him to prove the same. It appears that after the retirement the same department had re-employed him on contract basis. Had he been a corrupt person there would have been very little chance of his reemployment. However, without entering into merits of the case and without divulging our opinion on the merits of the case we have reached on the conclusion that the petitioner has succeeded in making out a case for bail specially in the circumstances when we had seen him physically and his lawyer has claimed that he is an old patient of Hypertension, diabeties and heart.
15. ' The learned ADPG Mr. Ainuddin Khan apart from filing the comments in writing has argued that since the petitioner has filed two forged documents with his petition as such he has not come with clean hands and is not entitled to relief sought by him. He has further argued that the figures shown in the reference have been provided by the Investigating Officer. Mr. Mehmood, who is present in Court. He says that investigation has revealed that caused was filling beyond his means and his assets and wealth is disproportionate to his known sources of income, which offence clearly falls under section 9 of the NAB Ordinance and falls within the meaning of corruption and corrupt practice. He has vehemently opposed the bail application on the point of forged documents. He has relied upon PLD 2004, Lahore Page 767 and 1983 SCMR page 616.
16. ' We had asked Mr. Nehal Hashmi, about the forged documents, he said that the petitioner genuinely thought that these are original and genuine documents and as such according to the statement of the petitioner at the time of his arrest he had given these documents to the Investigating Officer. Had he any knowledge that these are the forged documents he would have neither given it to the I.O. Nor had produced in the Court.
17. ' It is very distributing to note that inspite of these documents coming on record and in the knowledge of I.O. From the very inception of the case, neither the I.O. Has taken any steps to arrest the delinquent, nor the officer whose signatures have been forged have taken cognizance of the matter. Even the learned ADPG though has been several times asked to take some action, has not taken any action up till now. He has only told us that the department is conducting enquiry and will take the action in due course.
18. We have perused the record. Heard both the Advocates and seen the petitioner, recorded his statement and have reached on the conclusion that the petitioner has succeeded in making out the case for grant of bail during pendency of the trial. We therefore, order his release on bail upon furnishing surety in the sum of Rs.500,000 (Rupees five hundred thousand only) and PR bond in the like amount to the satisfaction of the trial Court.
19. ' The observations made by this Court in this order are tentative in nature and trial Court should not be influenced by it. The trial Court should decide the case on its own merits according to the evidence, which is produced before it by the prosecution as well as defence.
20. ' This petition stands disposed of.