' NAIMATULLAH PHULPOTO, J.---By this single order we will dispose of aforesaid constitutional petitions filed by petitioners Gul Muhammad Palejo and Syed Manzoor Ahmed Shah,Ashfaq Ahmed, Muhammad Ramzan Khan and Muhammad Asim Khan, seeking bail in Reference No.60/2013, filed before the Administrative Judge, Accountability Courts Sindh at Karachi.
2. Brief facts leading to the filing of petition are that a complaint against Syed Manzoor Ahmed Shah, Sub-Accountant, District Accounts Office Umerkot and Syed Azam Ali Shah brother of Manzoor Ahmed Shah PST Umerkot and others was received in NAB from complainant Ali Murad son of Yar Ali, on the basis of which inquiry was authorized. During inquiry it revealed that fake payments in respect of claims pertaining to Health Department amounting to Rs.87,163,283 were made to two fake companies i.e. Messrs Super Sys-Tech Computers, Tando Adam and Messrs AlQasim Agency Mirpurkhas. Inquiry was later on converted into investigation and authorized by the Director-General, National Accountability Bureau .Sindh vide letter No.1128/1/IW-1/CO-B/T-1/NAB Sindh/2012/2084 dated July 17, 2013. The Investigation Officer conducted investigation and in his report, he recommended submission of reference against the accused persons.
3. The investigation report reveals that the Health Department, Government of Sindh has suffered a huge loss of Rs.87,163,283 due to misuse of authority, corruption and corrupt practices and criminal breach of trust by the accused officers and officials of District Accounts Office Umerkot with active connivance of accused No.7 Muhammad Asim Khan, Proprietor Super Sys-Tech Computers (brother-in-law of accused No.1 Syed Manzoor Ahmed Shah), accused No.6 Nadir son of Nizamuddin, Proprietor Messrs Al-Qasim Agency (Brother-in-law of accused No.7 Muhammad Asim Khan) and accused No.5 Syed Umer Ali Shah son of Syed Manzoor Ahmed Shah who is private person and has been unauthorizedly working with his father accused No.1 Syed Manzoor Ahmed Shah. Investigating Officer has secured 25 forged cheques for fake payments which were shown processed on SAP System after entering fake token numbers from the IDs of officials and amount was charged to Health Department's Head Account No.AO 1101 for pay of officers, AO 1151 pay of other staff and AO 1244 Ad hoc relief of cost center UK-6084 during March, 2011 to November, 2011.
4. All the accused were given the VR option but none of them considered the same except Syed Manzoor Ahmed Shah accused No.1, whose VR application was rejected by competent authority. He was arrested on 6-5-2013 and remanded to the judicial custody on 7-5-2013. The bank accounts of all the accused were examined which showed a clear interflow of the money from the account of accused Nos.6 and 7 the owners of the two fake companies in the account of Syed Umer Ali Shah accused No.5.
5. The officials of District Accounts Office and Banks were examined during investigation and their statements were recorded. It is apparently established that 20 cheques amounting to Rs.66,985,150 favouring Messrs Super Sys-Tech Computers were presented through Burj Bank Limited formerly Dawood. Islamic Bank Limited, Tando Adam Brach then 6 demand Drafts issued in favour of Burj Bank Limited after deducting Bank charges Rs.0.04% and 06 cheques amounting to Rs.20,178,133 favouring Messrs Al-Qasim Agency were presented through Bank Islami Pakistan Limited Mirpurkhas Branch then 02 Demand Drafts issued in favour of the Bank. All the cheques were signed and issued by accused No.2 Ashfaque Ahmed Shaikh Ex-Additional District Accounts Officer Umerkot.
6. The investigation further reveals that as per record of Burj Bank, Tando ' Adam Account No.0024-01586-0002143 in the name of Super Sys-Tech Computer Center was operated by accused M. Asim Khan. The account was opened on 15-4-2010 with initial deposit of Rs.1000 and monthly business of Rs.30,000 for the purpose of account to collect the fees from students. The total credited amount in this account is Rs.106,356,553.39 including 06x demand drafts from NBP of 20x treasury cheques were deposited in this account amount to Rs.66,953,625 after deduction of bank charges. The debit transaction in this account was Rs.106,356,553.39 out of which the amount Rs.29;347,300.45 was transferred through cheques of Super Sys-Tech Computers into other accounts in the same bank. The above named accused persons have fraudulently withdrawn Rs.87.163 Million and caused loss to the Government Exchequer. Thus they have prima facie committed the acts of corruption and corrupt practices as defined under section 9(a) of the National Accountability Ordinance, 1999 and punishable under section 10 of the said Ordinance.
7. Petitioner Gul Muhammad Palejo filed Constitution Petition No.D-3394 of 2013 for seeking post- arrest bail, the same was dismissed by this Court vide order dated 26-9-2013.
8. Petitioner Gul Muhammad Palejo filed Constitutional Petition No.600-K/2013 before the honourable Supreme Court and the order of this Court dated 26-9-2013 was set aside vide order dated 13-1-2014, while observing as under:- "We have heard both the learned DPG (NAB) as well as Mr. Abdul Mujeeb Pirzada, Senior ASC. In the circumstances of the case we are of the opinion that the cases of all the accused persons with regard' to bail should be heard by a learned Bench of the High Court in order to avoid conflicting judgments. Consequently the impugned judgment is set aside. Let all the bail applications of the accused persons in the Reference No.60/ 2013 be placed before a Divisional Bench of the High Court of Sindh which should decide the same within 15 days. A copy of this order shall be placed before the Hon'ble Chief Justice of the Sindh High Court for doing the needful."
9. Bail after arrest of petitioners Gul Muhammad Palejo, Syed Manzoor Ahmed Shah, pre-arrest bail applications of petitioners Ashfaq Ahmed, Muhammad Asif and Muhammad Ramzan have been heard together. Bail application moved on behalf of the petitioner Nadir was dismissed as not pressed. C.P. No.D-2519 of 2013, filed by Syed Manzoor Ahmad Shah, seeking his release on bail has already been dismissed by this Court vide order dated 22-8-2013. He has also repeated the bail application. All bail applications of accused persons in Reference No.60/2013 have been heard together as per directions.
10. Mr. Abdul Mujeeb Pirzada, Advocate, argued that Petitioner Gul Muhammad Palejo was Accountant in 'District Accounts Office Umer Kot. No active role has been assigned to him except his initials on two cheques. Mr, Pirzada further argued that petitioner Gul Muhammad was not beneficiary and he had put his initials on two cheques due to the rush of work in good faith. In this regard, Mr. Pirzada placed on record the statement of the petitioner Gul Muhammad in which he has stated during inquiry that he put initials in good faith. It is argued that petitioner is in jail, he is no more required in the investigation. It is submitted that accused Gul Muhammad Palejo should have been made as a witness in this case, not an accused. Lastly, he has argued that accused Gul Muhammad suffers from heart ailment and he has undergone bypass surgery before arrest in the instant Reference. In support of the contentions, he relied upon the cases of Anwar Saifullah Khan v.
The State and others 2001 SCMR 1040,. Muzzamil Niazi and others v. The State PLD 2003 Karachi 526, Ikram-ul-Haq v. Raja Naveed Sabir and others 2012 SCMR, 1273.
11. Learned Advocate for petitioner Syed Manzoor Hussain Shah, argued that that case against petitioner is based upon documentary evidence, Petitioner is no more required for investigation, Reference has already been filed. There is no question of tampering with the evidence. Lastly it is argued that allegation against the petitioner are baseless, imaginary and based upon no solid proof.
12. Mr. Suhail Muzaffar, Advocate for petitioner Ashfaq Ahmed argued that petitioner is innocent, he has been falsely implicated in this case, there is no direct or indirect evidence against the petitioner to connect him in this case and he has been involved in this case at the instance of one Syed Ali Mardan Shah Ex-Minister for Government of Sindh.
13. Learned Advocate for petitioner Muhammad Asim Khan argued that reference has been filed against the petitioner for humiliation and unjustified harassment and there is no allegation against the petitioner for issuing the cheques and it is argued that petitioner was working as Computer Operator, he had nothing to do with this case. Lastly, it is submitted that, NAB intended to arrest him only to humiliate and disgrace.
14. Learned counsel for the petitioner Muhammad Raman Khan argued that petitioner was working on daily wages and Computer Operator. He had nothing to do with the alleged 'offence. It is argued that Reference has been filed against the petitioner for unjustified harassment. In case pre-arrest bail of petitioner is not confirmed, humiliation would be caused to him and lie will be disgraced in the society. Lastly, it is submitted that case against petitioner requires further enquiry.
15. Mr. Noor Muhammad, Special Prosecutor NAB, as well as D.A.G. Opposed the bail applications and argued that there is documentary evidence against the petitioners to disentitle them from the concession of the bail. Mr. Dayo, Special Prosecutor NAB argued that petitioner Gul Muhammad Palejo had put initials on two cheques of amounting of Rs.86,163,283. Mr. Dayo placed on record copy of the letter dated 31-1-2014, issued by A/DDCoord (IW-1), National Accountability Bureau, showing the proportionate liability of the accused persons involved in Reference No.60/2013 in hand. He also referred to the above Reference in order to show the separate allegations against the petitioners. Lastly, he has argued that there was no mala fide or enmity to the NAB against the accused persons to involve them falsely in the reference. He has strongly opposed the bail applications. In support of his contention, he has relied upon the following case-law:--
(1) Faisal Hussain Butt v. The State and another (2009 SCMR 133)
(2) The State v. Haji Kabeer Khan (PLD 2005 SC 364)
(3) Abdullah Durani and others v. The State (2004 SCMR 1200)
(4) Noor Ali Shah v. Chairman, National Accountability Bureau (Pakistan), Karachi (2008 YLR 2217)
(5) Jaffer Hussain v. Khushi Muhammad and 4 others (2008 LR 2220)
(6) Farida Rohail v. The State through Regional Director, National Accountability Bureau, Karachi (2007 MLD 347)
(7) Syed Mohsin Abbas Abidi v. National Accountability Bureau through Shafaat Nabi Khan Sherwani, Deputy Prosecutor General Accountability (2007 PCr.LJ 1094)
(8) Shahid Hassan Awan v. The State through Chairman, National Accountability Bureau,'
Islamabad and another (2008 YLR 1081)
(9) Zubair Ali Khan v. The State and others (2008 MLD 1400)
16. In order to examine the role of each accused, Reference No.60/2013 under section 18(g) read with section 24(b) of the National Accountability Ordinance 1999 filed before Administrative Judge, Accountability Court Sindh at Karachi is reproduced as under:- "(1) That a complaint against Syed Manzoor Ahmed Shah, Sub-Accountant, District Accounts Office Umerkot and Syed Azam Ali Shah Brother of Manzoor Ahmed Shah PST Umerkot ana others was received in NAB from Complainant Ali Murad son of Yar Ali on the basis of which inquiry was authorized. During inquiry it revealed that fake payments in respect of claims pertaining to Health Department amounting to Rs.87,163,283 were made to twa fake companies i.e. Messrs Super Sys- Tech Computers, Tando Adam and Messrs Al-Qasim Agency Mirpurkhas. Inquiry was later on converted into investigation and authorized by the Director General, National Accountability Bureau Sindh vide letter No.1128/1/IW1/C O-B/T-1/NAB Sindh/2010/2084 dated July 17, 2013. The Investigation Officer conducted investigation and submitted his report and recommended submission of reference against the accused persons.
(2) That the investigation report reveals that the Health Department, Government of Sindh has suffered a huge loss of Rs.87,163,283 due to misuse of authority, corruption and corrupt practices, and criminal breach of trust by the accused officers and officials of District Accounts Office Umerkot with active connivance of accused No,7 Muhammad Asim Khan, Proprietor Super Sys- Tech Computers (brother-in-law of accused No.1 Syed Manzoor Ali Shah), accused No.6 Nadir son of Nizamuddin, Proprietor Messrs Al-Qasim Agency (Brother-in-law of accused No.7 Muhammad Asim Khan) and accused No.5 Syed Umer Ali Shah son of Syed Manzoor Ali Shah who is private person and has been unauthorizedly working with his father accused No.1 Syed Manzoor Ahmed Shah. Investigating Officer has secured 25 forged cheques for fake payments which were shown processed on SAP System after entering fake token numbers from the IDs of officials and amount was charged to Health Department's Head Account No.AO 1101 for pay of officers, AO-1151 pay of other staff and AO-1244 Ad hoc relief of cost center UK-6084 during March, 2011 to November, 2011.
(3) That all the accused were given the VR option but none of them considered the same except Syed Manzoor Ahmed Shah accused No.1, whose VR application was rejected by competent authority. He was arrested on 6-5-2013 and remanded to the judicial custody on 7-5-2013. The bank accounts of all the accused were examined which showed a clear interflow of the money from the accounts of accused No.6 and 7 the owners of the two fake companies in the account of Syed Umer Ali Shah accused No.5.
(4) That the officials of District Accounts Office and Banks were examined during inavestigation and their statements were recorded. It is established that 20 cheques amounting to Rs.66,985,150 favouring Messrs Super Sys-Tech Computers were presented through Burj Bank Limited formerly Dawood Islamic Bank Limited, Tando Adam Branch then 06 demand Drafts issued in favour of Burj Bank Limited after deducting Bank charges a Rs.0.04% and 05 cheques amounting to Rs.20,178,133 favouring Messrs Al-Qasim Agency were presented through Bank Islami Pakistan Limited Mirpurkhas Branch then 02 Demand Drafts issued in favour of the Bank. All the cheques were signed and issued by accused No.2 Ashfaque Ahmed Shaikh, Ex-Additional District Accounts Officer Umerkot. The detail is as under:- ' A. Payment to Super Sys-Tech Computers owned by Accused Asim Khan: {{TABLE}} S. No. Date Cheque/ Invoice #Amount
1. 2-3-2011385197 495,263
2. 26-4-2011385304 498,777
3. 26-4-2011385305 499,533
4. 26-4-2011385306 496,899 1,990,472
5. 10-5-2011385656 499,898
6. 10-5-2011385657 497,548
7. 10-5-2011385658 498,654
8. 10-5-2011385659 497,586 1,993,686
9. 6-6-2011476282 5,500,654
10. 6-6-2011476283 5,500,176
11. 6-6-2011476284 5,500,067
12. 6-6-2011476285 5,500,095 22, 000, 992
13. 14-6-2011476664 3,000,000
14. 14-6-2011476665 3,000,000
15. 14-6-2011476666 3,000,000 9,000,000 20-620114771908,000,000
17. 20-6-20114771914,000,000 12, 000, 000
18. 3-10-20114776728,000,000
19. 27- 9-20113300008,000,000 . 20. 5-10-20114776884,000,000 20, 000, 000 Grand Total Rs.66,985,150 20-620114771908,000,000
17. 20-6-20114771914,000,000 12, 000, 000
18. 3-10-20114776728,000,000
19. 27- 9-20113300008,000,000 . 20. 5-10-20114776884,000,000 20, 000, 000 Grand Total Rs.66,985,150 1.3-11- 20114780785,500,659 2.3-11- 20114780791,000,149 6,500,808 3.8-10- 20114779055,500,985 4.8-10- 20114777135,500,589 5.8-10- 20114777122,675751 13, 677, 325 Grand Total Rs.20,178,133 A. The Grand Total of Super Sys Tech - Rs, 66, 985,150 B.
The Grand twat. of Al-gasim Agency a 16.20,178,133 Grand Total A+B m Rs.87,163, 283 DD 4 344851 dated 10-11-2011 for 6,497,722 issued in favour of Manager Bank Islami Pak. Limited Mirpurkhas Branch.
DD 4 344797 dated 12-10-2011 for 13,670,909 issued in favour of Manager Bank Islami Pak. Limited Mirpurkhas Branch.
5. That the above named accused persons are found openly involved in the offence and they were provided with ample opportunity to prove their innocence but they failed to give any such evidence in their favour. It is established that they have committed criminal breach of trust, misuse of authority in case of issuing 25 fake cheques from District Accounts Office Umerkot in the name of fake companies opened by relatives of main accused Manzoor Ahmed Shah, Auditor, District Accounts Office Umerkot.
' That Investigation has transpired that in order to give cover to these paid off 25 cheques, 20 in favour of Super Sys-Tech Computer Center for Rs.66,985,150 and 5 in favour of Al-Qasim Agency Mirpurkhas for Rs.20,178,133, the accused Manzoor Shah, M. Ramzan and Umer Ali Shah prepared forged record at District Accounts Office Umerkot. All these fake vouchers of fake Super Sys-Tech Computer Company are signed by proprietor accused M. Asim Khan. These forged papers were recovered from the office almirah of accused Mansoor Ahmed Shah.
' That investigation further reveals that as per record Bank Islami Mirpurkhas A/c. No.1021- 1470523- 0001 in the name of Al-Qasim Agency Hyderabad Road Mirpurkhas was opened by accused Nadir as Proprietor of the Company. In this account Rs.20,168,631 were credited through clearance of 05 cheques where amount was received from National Bank of Pakistan Umerkot Branch through two Demand Drafts.
8. The investigation further reveals that as per record of Burj Bank, Tando Adam Account No.0024- 01586-0002143 in the name of Super Sys-Tech Computer Center was operated by accused M. Asim Khan. The account was opened on 15-4-2010 with initial deposit of Rs.1000 and monthly business of Rs.30,000 for the purpose of account to collect the fees from students. The total credited amount in this account is Rs.106,356,553.39 including 06x demand drafts from NBP of 20x treasury cheques were deposited in this account amounting to Rs.66,953,625 after deduction of bank charges. The debit transaction in this account was Rs 106,356,553 39 out of which the amount Rs 29,347,300.45 was transferred through cheques of Super Sys-Tech Computers into other accounts in the same bank. The modus operandi and role of the accused are more fully described in the Investigation Report.
9. That in view of above facts and evidence collected, it has been established that the above named accused persons have fraudulently withdrawn Rs.87.163 Million and caused, loss to the Government Exchequer. Thus they have committed the acts of corruption and corrupt practices as defined under section 9(a) of the National Accountability Ordinance, 1999 and punishable under section 10 of the said Ordinance."
17. After hearing the learned counsel for the parties, we have tentatively examined the entire material collected by the NAB during investigation as well as Reference filed before the concerned Accountability Court. A Court considering a bail application has to tentatively look into the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left un-rebutted, may lead to inference of guilt.
18. We have tentatively examined the material/allegations of the prosecution levelled against each accused. As far as petitioner Ghulam Muhammad Palejo is concerned, he was Accountant, District Accounts Office Umerkot at the relevant time. During investigation, it was found that petitioner Gul Muhammad Palejo put his initials on two cheques amounting to Rs.8,000,000 and 4,000,000. Mr. Pirzado, appearing on behalf of petitioner Gul Muhammad placed on record statement of Petitioner Gul Muhammad recorded during the investigation, in which he has admitted that he put signatures on two forged cheques but claimed that he did so in rush of work and in good faith.
Prima facie, there is sufficient documentary evidence and statement of the petitioner Gul Muhammad Palejo in which he has admitted his signatures. Prima facie, there are reasonable grounds to believe that the applicant/accused GUI Muhammad Palejo has committed the alleged offence. Petitioner Gul Muhammad has recovered after surgery. However, Jail Superintendent shall provide proper treatment to accused Gul Muhammad, if needed. In 'the Reference in Para No.5 to 8 specific material/allegations against the above named accused persons have been detailed and it is alleged that above named petitioners have committed criminal breach of trust, misuse .Of authority by issuing 25 fake cheques from District Accounts Office Umerkot in the name of fake Companies opened by relatives of main accused Manzoor Ahmed Shah, Auditor, District Accounts Office Umerkot. During investigation it.Was also transpired that in order to give cover to these paid off 25 cheques, 20 in the favour of Super Sys-Tech Computer Company for Rs.66,985,15005 in the favour of Al-Qas Agency Mirpurkhas for Rs.20,178,133, accused Manzoor Ahmed Vial), Muhammad Rainzan and Umer Ali Shah prepared forged record at District Accounts Office Umerkot. All these fake vouchers for fake Super Sys-Tech Computer Company were signed by accused Muhammad Asim Khan. Thereafter, forged cheques were recovered from the Almirah of accused Manzoor Ahmed Shah from his office. Further it revealed in the investigation that as per record of Bank Islami Mirpurkhas an Account No.1021- 1470523-0001 in the name of Al-Qasirn Agency Hyderabad Road Mirpurkhas was opened by accused Nadir as Proprietor of the Company. In the said Account Rs .204168,631 were credited through clearance of 5 cheques where amount was received from National Bank of Pakistan Umerkot Branch through two demand drafts. In the investigation it also came 'on surface that as per record of Burj Bank, Tando Adam Account No.0024-01586- 0002143 in the name of Super Sys-Tech Computer Center was operated by accused Muhammad Asim Khan.
The Account was opened on 15-4-2010 with the initial deposit of Rs.1000 and monthly business of Rs.30,000 for the purpose of account to collect the fee from the students. The total credited amount in this account has been shown Rs.106,356,553.39/including 06 demand drafts from National Bank of Pakistan of 20 Treasury Cheques were deposited in this Account amounting to Rs.66,953,625. The debit transaction in this account was Rs.106,356,553.39, out of which an amount of Rs.29,347,300.45 was transferred through cheques of Super Sys-Tech Accounts in the other accounts in the same Bank. Apparently, there is sufficient documentary evidence on the record to show that above named accused persons have fraudulently withdrawn Rs.87.163 Million and caused loss to the Government Exchequer.
19. Prima facie, the documentary evidence collected by NAB authorities is sufficient to connect the accused persons, as such, reasonable grounds exist that Petitioners have committed offences as alleged by the prosecution. Petitioners/ accused have failed to point out any mala fide/enmity of NAB with them, to involve falsely in this case. This Court exercises power for grant of bail before arrest in rare and in exceptional circumstances. Deeper appreciation of evidence is not permissible at bail stage. It is high time that offences of causing loss to Government Exchequer B should not be tolerated. In our considered view, above cited authorities referred by learned counsel for the petitioners are not applicable to the circumstances of the case. While respectfully relying upon cases of Faisal Hussain i!Utt v. The State and another (2009 SCMR 133) and The State v. Haft Kabeer Khan (PLD 2005 SC 364) above bail applications moved on behalf of the applicants/accused are found without merit, the same are hereby dismissed. Interim pre-arrest already granted to the petitioners/accused, namely, Ashfaq Ahmed, Muhammad Ramzan Khan and Muhammad Asim Khan is hereby recalled. However, trial Court is directed to proceed with the case/Reference on day to day basis and submit the progress report through M.I.T.-II of this Court. Consequently, aforesaid Constitutional Petitions filed for bail are dismissed.
20. Needless to mention here that above observations made herein above are tentative in nature and the trial Court shall not be influenced by such observations while deciding the case on merits.