' REHMAT HUSSAIN JAFFERI, J.---This judgment will disposed of C.Ps. Nos.D-568, 880,993,994,995 and 1432 of 2007 as they arise out of a common reference.
2. On 16-3-2007 the Chairman, NAB filed the following reference:-- "Reference No,18 of 2007 'The State
(1) Salahuddin Mughal son of Haji Deen Muhammad, Former Secretary Sindh Workers Welfare Board Karachi, resident of Bungalow No,42, 8th Commercial Street, Phase-IV, DHA, Karachi presently posted Deputy Director Labour, Thatta.
(2) Syed Muhammad Irfan son of Syed Maqsood Hussain, Former Welfare Officer, Sindh Workers Board Karachi.
(3) Madad Ali Shaikh son of Dil Murad, Ex-Manager U. B . L. Landhi, Industrial Area Branch, Karachi.
(4) Muhammad Shoaib Wasti son of Syed Aftab Wasti, Clearing Officer U.B.L, Landhi Industrial Area Branch, Karachi.
(5) S.M. Wasim son of Syed Muhammad Saleem, Computer Operator, U.B.L, Landhi Industrial Area Branch, Karachi.
(6) Ghulam Mustafa Shaikh son of Haji Umer Shaikh, Cashier, Accounts Branch EPZA, Karachi, Account Holder A/C No, 1011180-1 U.B.L, Landhi Industrial Area Branch, Karachi.
(7) Muhammad Anis son of Mehboob Ali, Stenographer, EPZA, Karachi Account Holder A/C No,101- 0211-1 U.B.L.
(8) Zafar Iqbal resident H.No,B-53, New Muzaffarabad Colony, Landhi Karachi Account Holder A/C No,101-1630-1 and 010-2185-4 U.B.L.
(9) Mumtaz Ahmad son of Ali Hassan, Labour Officer, Messrs Globe Textile Mills Pvt. Limited.
Reference under section 18(G) read with Section 24(B) of the National Accountability Ordinance, 1999.
' Respectfully Sheweth:-
(1) That a complaint was received by Director-General, National Accountability Bureau Sindh Karachi on 26th December, 2001 against the officials of Sindh Worker Welfare Board Karachi (S.W.W.B) wherein it was alleged that during the year 2000-2001 the officials of S.W.W.B had misappropriated funds out of the marriage/Jehaiz grant meant for the needy workers. After conducting the inquiry, investigation was authorized on 8-6-2004 by Director General National Accountability Bureau Sindh. Investigating Officer has submitted his report wherein sufficient evidence has come on record which substantiates the allegation of corruption and corrupt practices against the officials of S.W.W.B. And others including Bank officials and officials of different Industries.
(2) That during financial year, 2000-2001, Salahuddin Mughal (accused No,1) was posted as Secretary S.W.W.B. And Syed Muhammad Irfan (accused No,2) was working as Welfare Officer with/under him. S.W.W.B. Received a sum of Rs,31,500,000 as grant for "Jahaiz" for workers of Private Industrial Sector at the rate of Rs,20,000 per worker. Accused No,1 in the capacity of Secretary S.W.W.B. Invited applications through newspaper " Nawa-e-Waqat" dated 16th September, 2000.
Accused No,2 was made incharge by accused No,1 to scrutinize the applications of workers for the subject grant as per conditions of admissibility.
(3) That the investigation revealed that in response to the said advertisement/publication, 5741 applications were received from 132 Industrial Enterprises which required to be scrutinized through a Four members Committee constituted by the Board. However, the preliminary scrutiny was carried out by accused No,2 and a note was placed by him to the Secretary (accused No,1) for fixing the date of meeting of Scrutiny Committee. Accordingly, Committee held Its first meeting on 9th April, 2001 which was attended by all the members and it was decided to get applications verified from the concerned Industrial Enterprises; all the applications were sent for scrutiny to various Industries and confirmation letters or otherwise were received.
(4) That the second meeting of the Committee was held on 7th May, 2001 wherein the Committee observed that a total of 4694 applications were valid against 1575 available grant cheques of Rs,20,000 each, Therefore, it was decided to hold the ballot through Computer. Accordingly, the computers ballot was held on 13th June, 2001 and names of successful candidates were declared.
Cheque Distribution Ceremony was held on 30th June, 2001 where 200 cheques were distributed amongst the successful workers in the presence of representative of Factories and Worker Unions.
The other cheques were distributed subsequently during the month of July and August, 2001. During investigation, it has been found that out of 1575 applications from various factories 288 employees were not genuine workers, however cheques were distributed in their names. The amount of 288 bogus/ghost employees comes to Rs,57,60,000 which was misappropriated by all the accused.
Investigation further reveals that the Scrutiny Committee did not scrutinize the credentials of applications appropriately but due to their gross negligence, 288 cheques were not delivered to the entitled bona fide workers instead these cheques were deposited in the Account Nos. 010-2185- 1, 101-1630-1, 101-1180-1 and 101-0211-1 which were operated by accused Nos.6 to 8. As per rules and procedures these cheques could not have been deposited in the accounts of accused Nos.6, 7 and
8. However, with the active connivance accused Nos.3, 4 and 5, these cheques were deposited in the said accounts. A sum of Rs,29,40,000 was drawn by the accused Nos.6, 7 and 8 from these accounts, on various dates during July to September, 2001.
(5) That it has been confirmed from the factories that 288 persons were not employees of any factory, however cheques were issued in their names. Out of 288, 11 such fictitious forms were prepared by accused No,9 Labour Officer for Messrs Globe Textile Mills Pvt. Limited Landhi Karachi.
He also signed false verification letters on behalf of management and signed cheques distribution register. The accused No,9 also received 46 cheques on various dates during June and July, 2001 from the management of worker Welfare Fund and instead handing over to the concerned workers deposited the same in the account of accused Nos.6,7 and 8.
(6) That the accused Nos.1 to 5 in connivance with accused Nos.6 to 9 misappropriated the sum of Rs,57,60,000 of Workers Welfare Fund. Accused No,2 prior to authorization of investigation Submitted application under section 25-A for voluntary return out of misappropriated amount to the tune of Rs,14;40,000 the application is under consideration after deducting the amount of voluntary return the total outstanding amount would be Rs .43, 20,000.
(7) That the evidence collected during investigation establishes that accused in connivance and collaboration with each other fraudulently or dishonestly misappropriated an amount of Rs,57,60,000 from Workers Welfare Fund by process-sing fake claims and misusing crossed cheques and thus by corrupt, dishonest or illegal means obtained for themselves pecuniary advantage. Further, the accused Nos.1 and 2 misused their authority to gain benefit for themselves and other accused and wilfully failed to exercise their authority to prevent the grant of undue benefit. The accused thereby committed the offence of corruption and corrupt practices as defined in clauses (iii), (iv) and (xii) of sections 9(a) of National Accountability Ordinance, 1999 and Schedule thereto.
(8) That on the appraisal of material and evidence placed before me, I am of the opinion that it is just and proper to proceed further as there is sufficient incriminating material to justify the filing of this reference. The matter is referred to the Honourable Court within the meaning of section 16(c)
National Accountability Ordinance, 1999.
'It is, therefore, prayed that the accused may be tried and punished by the Honourable Court in accordance with law. List of witnesses, report of investigation and documents as per list are attached herewith.
'(Sd.)
'Lieutenant General (R) Chairman (Shahid Aziz)
"National Accountability Bureau, Islamabad, dated 16th March, 2007"
3. We have heard the advocates for the petitioners, DPGA. For NAB and perused the record of the case very carefully.
4. There are three sets of accused; one set of accused is Secretary to Government of Sindh and his Assistant, the second set of accused is Bank employees and the third set of accused is account holders. The allegations against Salahuddin Mughal, Secretary to Government of Sindh and Muhammad Irfan is that they did not scrutinize the applications properly and also did not verify the names of persons. The prosecution relied upon the evidence of two sets of witnesses. The statements of such witnesses have been filed along with the comments filed in the petition. The statements of one set of witnesses disclosed that few employees and certificates were fake whereas another set of witnesses disclosed that the representative of workers Federation had verified the workers and then cheques were issued. As such, both the sets of witnesses are to be examined before the trial Court where the deeper appreciation can be undertaken. At this stage only tentative assessm ent can be made. From that assessment we are of the view that it is yet to be determined as to whether the workers were fake or were verified by respective workers union of employees.
5. As regards the case of bank employees viz. Muhammad Shoib Wasti and Madad Ali Shaikh, the prosecution has relied upon the statements of four witnesses viz. Mubeenul Moeen, Farooq Mahmood, Muhammad Akram and Syed Habibul Hussan. The statements of Mubeenul Moeen and Farooq reveal that they conducted departmental inquiry and further added that some employees were negligent in performing their duties and fixed the responsibility on five bank officials. They relied upon their inquiry report. In the statements before the Investigating Officer they did not disclose the names of any accused. The inquiry report has been filed along with the comments which is a detailed one. From perusal of said report it reveals that the Inquiry Officers based their opinion upon statements of various officials. It appears that the Investigating Officer did not record the statements of said officials. Inquiry report is an opinion of a witness which is based on some other material. Unless the said material is produced before the trial Court the same cannot be properly appreciated as it is not binding upon the Court.
6. As regards the statement of Muhammad Akram, he has produced the inquiry report. The statement of Syed Habibul Hassan reveals that after seeing the record he stated that the credit vouchers were forwarded and passed through him and some credit vouchers bore his signature as supervising officer and he made such signatures on the next day after receiving the clearance from the concerned bank. No other statements of any witness have been filed along with the comments by the respondents involving the petitioner in the crime.
7. As regards the case of Ghulam Mustafa Shaikh and Muhammad Anis, the prosecution alleged that they are the account holders in U.B.L. Where the cheques were deposited. The petitioners have denied that the accounts were opened them. The prosecution filed comments. Along with the comments they also filed the statements of witnesses on which they are relying for the involvement of the petitioners. The statements of Farooq Mahmood and Mubeenul Moeen show that they conducted inquiry and their evidence has been discussed above. The prosecution also relied upon the statement of Muhammad Akram who, after verifying the record, stated that Ghulam Mustafa Shaikh had opened the account on 10-6-1996 and he gave the names of introducer and other persons. The prosecution also filed the statements of petitioners Muhammad''
Waseem and Muhammad Shoib Wasti recorded under section 161, Cr .P.0 . They are the accused in the case, as such, their statements cannot be relied upon.
8. From the evidence produced by the prosecution along with their comments against each petitioner it is clear that the allegation could only be determined at the conclusion of the trial as deeper appreciation of evidence is required to see as to whether petitioners are involved in the case or otherwise. From the tentative assessment we are of the view that the allegations by themselves would not constitute bar for grant of bail in the peculiar facts and circumstances of the present case and without touching the merits of the allegations and grievances of the petitioners which might prejudice the case of any of the parties, the petitioners are entitled to the concession of bail.
9. Consequently, pre-arrest bail already granted to petitioners Salahuddin Mughal, Muhammad Irfan and Madad Ali Shah was confirmed on same terms and conditions whereas bail was granted to the petitioners Muhammad Shoib Wasti, Muhammad Anis and Ghulam Mustafa in the sum of Rs,200,000 by our short order, dated 2-10-2007. These are the reasons of the said short order by which we had allowed the petitions.