AQEEL AHMED ABBASI, J.---Above petitions have been filed under Article 199 of the Constitution, whereby, the petitioners have sought bail after arrest in a NAB Reference No,7/2016 filed before the Accountability Court, Hyderabad under section 18(g) read with section 24(b) of the National Accountability Ordinance, 1999, on the allegations of corruption and misappropriation of funds of TMA, Matli during the years 2007-2012. Since the aforesaid petitioners have been arrested in the same reference filed before the Accountability Court on some what similar allegations of misappropriation of funds of TMA, Matli during the year 2007 -2012 in their capacity as Ex-Officer of TMA, Matli and the contractors, therefore, by consent of the learned counsel for the petitionersand Senior Special Prosecutor, NAB as well as the Assistant Attorney General, above petitions are heard and disposed of through this common order.
2. Brief facts as stated in the memo of petitions as well as in the Reference No,7/2016 filed against the petitioners and other co-accused persons before the Accountability Court, Hyderabad, are that on receipt of a complaint regarding misappropriation of funds of TMA, Matli during the years 2007 - 2012 by Ahmed Khan Abro, Munawwar Zareef, Tariq Hameed Memon, Ex-TMOs, Taluka Matli and others, inquiry was authorized, which was converted into investigation vide letter dated 30.04.2015 by the Directorate General, NAB, Karachi. During investigation, according to prosecution, it was revealed that liability of Rs, 2.6 million and Rs, 0.343 million was established, against accused Arbab Hussain and Nazeer Ahmed Nizamani respectively during the course of inquiry, whereas, both of them entered into voluntary return and have paid the aforesaid amount. Liability of Rs,0.96 million was established against accused Naveed Shahid, Proprietor of Messrs Arain Memon Construction Company during investigation, who opted option of plea bargain, which was accepted by the Competent Authority and approved by the Administrative Judge, Accountability Courts, Karachi, hence, they were not sent up for trial. However, during investigation, the present petitioners along with other co-accused persons were found to have misused their authority and allegedly misappropriated the public funds during the aforesaid period, whose cases have been sent for trial by the NAB Authorities, through aforesaid reference. As per record, all the co-accused persons, except the present petitioners in the aforesaid petitions, have been granted pre-arrest bail, whereas, the present petitioners were arrested by the NAB Authorities. whereafter, their remand was obtained by the NAB Authorities, and after detailed inquiry and investigation, they have been sent for judicial custody, and above Reference has been filed before the Accountability Court, Hyderabad.
3. The allegations against the petitioner, namely, Ghulam Mustafa Jahejo (accused No,13), Ex- Taluka Officer (Finance)/Chief Officer), TMA, Matli has been detailed in Para: 16 of Reference No,7/2016, according to which, the accused Ghulam Mustafa Jahejo misappropriated TMA funds during the year 2011-12 to the tune of Rs,5.3 million by authorizing bogus payments in connivance with accused No,9, to the beneficiary contractors (accused Nos,29 and 30), namely, Abdul Waheed Jamali and Sodho respectively), without inviting tenders/quotations, preparation of estimates, receiving of bids from contractors, comparative statements, contract agreements, work orders/supply orders, measurement books, paid up vouchers etc. and without mentioning any description/particulars of works in cheque issue.
4. The allegations against petitioner, namely, Haq Nawaz Leghari (accused No,14) Ex-Taluka Officer (Finance/Chief Officer TMA Matli are detailed in Para:17 of Reference No,7/2016, according to Which, he has misappropriated an amount of Rs, 6.69 million from TMA funds during the financial year 2013-14 by authorizing bogus payment to Sodho (accused. No,30) in connivance with accused No,9, namely, Munawwar Zareef (Ex-CMO/ Administrator, TMA, Matli) and has refunded the security deposit of NIT works executed during financial year 2009-10, whereas, according to prosecution, such security deposit amount was already refunded to the relevant contractors in the year 2010-11.
5. Similarly, the allegations against the petitioner, namely, Feroz Hussain Memon, Proprietor of Messrs Al-Mehran Engineering Services Limited are detailed in Para:30 of the aforesaid Reference No,7/2016. according to which, the petitioner received fraudulent payment through bogus vouchers of earth filling work. supply of hand pumps and hand trollies etc. and caused a loss of Rs,1.198 million to the National exchequer in the year 2011-12 in connivance with accused Nos,1, 2, 6 and 8. In addition, as per allegations he also received fraudulent payment of Rs,2.61 million without any tender/quotation, contract agreement, work/supply order, MBs, paid up vouchers, completion certificates in connivance with accused Nos, 1 to 3.
6. The allegations against petitioner, namely, Muhammad Shoaib (accused No,28) Government Contractor, are detailed in Para.31 of the aforesaid Reference No,7/2016, according to which, he received fraudulent payment through bogus vouchers for earth filling work, supply of hand pumps and hand trollies etc. and allegedly caused a loss of Rs,4.201 million to the National exchequer in the years 2010-11 and 2011-12 in connivance with accused Nos,1, 2, 3, 6, 8, 9 and 10.
7. The aforesaid petitioners were arrested pursuant to issuance of Warrant of Arrest by the NAB Authorities, whereafter, on completion of investigation, Reference No, 7/2016 has been filed before the Accountability Court, Hyderabad, whereas, the petitioners are behind the bar since their arrest by the NAB Authorities.
8. It has been vehemently argued by the learned counsel for the petitioners that the petitioners are innocent, who have been falsely implicated in the aforesaid reference by the NAB Authorities on a frivolous complaint, containing vague and baseless allegations, whereas, according to learned counsel, petitioners have not been provided any opportunity to explain their position with regard to the above allegations against them, therefore, they have been condemned un-heard. It has been further contended by learned counsel for the petitioners that petitioners have never been confronted by the NAB Authorities during inquiry or investigation regarding any specific NIT or award of contract during the specific financial year, whereby, the petitioners have allegedly misappropriated the public funds. On the contrary, per learned counsel, on the basis of generalize and vague allegations, in the absence of any incriminating material or evidence to support such allegation, Reference against the petitioners has been sent up for trial to the Accountability Court, whereas, their arrest has been made in violation of law. According to the learned counsel for the petitioners, inspite of considerable lapse of time, the prosecution has not examined any material witness nor could produce any incriminating material against the petitioners, which could establish the allegations of misuse of authority, or misappropriation of public funds by the petitioners beyond reasonable doubt, therefore, the delay in conclusion of trial before the Accountability Court, which cannot be attributed to the present petitioners, has already caused serious hardships and injury to the petitioners, who have no previous criminal record, nor they have been proceeded against for similar allegation, however, they are behind the bar since their arrest, whereas, all the co-accused persons (except accused Nos,2, 15, 17, 18 and 30) have been granted pre-arrest bail by this Court. According to learned counsel for the petitioners, the prosecution has not been able to collect any incriminating material against the petitioners inspite of having obtained their remand during inquiry and investigation, which may suggest that the petitioners have misappropriated the public funds or they are the beneficiaries of the alleged misuse of authority or misappropriation of funds, whereas, no prosecution witness so far examined, which could establish the allegations of corruption and misappropriation of funds by the petitioners without reasonable doubt. It has been argued by learned counsel for the petitioners that inquiry and investigation and the arrest of the present petitioners is based on mall fides, whereas, in the absence of any incriminating material or evidence against the petitioners, the prosecution was not justified to send up the names of petitioners in the aforesaid Reference. Per learned counsel, there is no possibility of conviction of the petitioners during trial, which has already been prolonged by the prosecution without any valid reasons. According to learned counsel for the petitioners, bail cannot be withheld as punishment, whereas, the petitioners are no more required for investigation and there is no possibility that petitioners, if released on bail during trial, will tamper with the evidence, which according to prosecution, has already been collected and produced before the Accountability Court. It has been prayed that the petitioners may be granted bail subject to their furnishing surety. In support of their contention, learned counsel for the petitioners have placed reliance following reported cases:--
(i) 2012 MLD. 777 (Abdul Aziz Qazi v. National Accountability Bureau)
(ii)2014 PCr.LJ 186 (Sardar Amin Farooqui v. Chaiman NAB and another), (iii)2015 YLR 108 (DB (Abdul Jabbar v. State (NAB)
9. Conversely, learned. Senior Special Prosecutor, NAB duly assisted by the 1.0. of the case, has opposed the grant of bail to the petitioners on the ground that their names with specific role have been given in the Reference submitted before the Accountability Court, Hyderabad, whereas, trial has proceeded. However, on a query of this Court from the 1.0. of the case regarding any direct evidence or material, which would establish that petitioners are the beneficiaries of the alleged misappropriation of funds, in response to such query, it has been candidly stated by the I.O. that so far, no direct evidence, including the bank accounts of the petitioners or any property etc. could be traced out, which would reflect that either deposits of the misappropriated amounts in the accounts of die petitioners have been made or petitioners are found owners of some property out of such alleged amount of misappropriation of funds. The I.O. of the case present in Court was further asked to refer to some independent technical report regarding the nature and quality of work, which according to prosecution, was substandard or to refer to any specific NIT/contract awarded during the relevant period, without legal formalities, however, in response to such query, it has been contended by the I.O. that since no NIT/contract was awarded and the amount has been embezzled by the petitioners, without even carrying out the work, therefore, reference to such NIT/contract or its award through the petitioners is not required.
10. We have heard the learned counsel for the petitioners and Senior Special Prosecutor NAB duly assisted by the I.O. of the case as well as the learned Assistant Attorney General, and also perused the record with their assistance. Admittedly, all the co-accused persons except the absconding accused and the present petitioners, have been granted pre-arrest bail by this Court, whereas, the petitioners are behind the bars since their arrest. From perusal of the allegations as contained in the Reference, prima facie, it appears that allegations against the petitioners are generalized and vague in nature, whereas, the petitioners appear to have never been confronted with any specific NIT/contract, which according to prosecution, was issued in violation of SPPRA Rules or amounts have been paid or received by the petitioners without proper award or actual execution of such NIT/contract during the relevant period. The prosecution, inspite of a specific query of this Court, could not refer to any bank accounts of the petitioners or any other material, which would establish without reasonable doubt that the petitioners are the beneficiaries of such alleged misappropriated amount as referred in the Reference by the NAB Authorities. It appears that inquiry and investigation in respect of instant Reference was initiated in the year 2015, however, the Reference has been filed after a delay, which has not been explained, whereas, trial has not so far been concluded. Petitioners are behind the bars since their arrest and delay in conclusion of trial is not attributable to the petitioners. Reportedly, A the witnesses produced and examined so far by the NAB Authorities did not directly implicate the petitioners in the alleged crime without reasonable doubt. There seems no possibility of early conclusion of trial as according to prosecution, a number of witnesses are yet to be examined by the NAB Authorities to establish the allegations of corruption' and misappropriation of funds of TMA, Matli. All the co-accused persons with somewhat similar allegation by NAB, are enjoying the concession of pre-arrest bail, and no efforts appear to have been made by the NAB Authorities for seeking recalling or cancellation of their bail during pendency of instant petitions before this Court. We are of the view that, withholding bail to the present petitioners, who have been implicated in the aforesaid Reference on similar set of allegations as against the co-accused persons, would amount to punishment to the petitioners, who are no more required for further investigation, whereas, there is no possibility that petitioners, if released on bail, may tamper with the evidence, which according to prosecution, has already been collected and produced before the Accountability Court Hyderabad.
11. We are of the opinion that petitioners have made out a case of further inquiry, whereas, they have already suffered the delay in the conclusion of the trial, which is contrary to the very scope and spirit of NAB Ordinance, 1999, which requires a transparent inquiry and investigation and an early conclusion of the trial in accordance with law. Reliance in this regard can be placed on a recent decision of the Honourable Supreme Court in Civil Petition No,11 of 2016 (Muhammad Anwar Brohi v. Chairman NAB, Islamabad), wherein, the Honourable Supreme Court, vide order dated 02.03.2016, has been pleased to hold as under:-- "We are not inclined to examine the merits of the case as the petitioner's plea for grant of bail on merits has already been rejected by this Court on 19.03.2015. However, we have noted that trial has not proceeded much since then. Uptill now only 5 out of 63 prosecution witnesses have been examined and 58 witnesses still remain to be examined. One the co-accused, who was absconding, has now been arrested. All this may cause further delay in the conclusion of the trial.
Furthermore, no part of the delay that has already been caused in the trial was attributed to the petitioner. The petitioner was arrested on 04.05.2014 and is in custody for the past 22 months, In these circumstances, a case for grant of bail on the ground of delay in the conclusion of the trial is made out."
12. Reference in this regard can be made to the case of Shoaib Warsi and another v. Federation of Pakistan and others (PLD 2017 Sindh 243), wherein, this Court, while granting bail to the petitioners, has been pleased to hold as under:-- "Admittedly, inspite of considerable lapse of time i,e, more than a year since arrest of the petitioners, the trial has not let Commenced before the Accountability Court nor even the charge has been framed, whereas, there is inordinate delay in the trial which cannot be attributed to the petitioners, and such delay has not been explained by the prosecution. Inordinate delay in trial while keeping the accused person(s) behind the bars as punishment is contrary to the very spirit .of the NAB Ordinance, 1999, which requires expeditious decision in the matters relating to NAB. We are of the opinion that the petitioners who are behind the bars for more than a year, whereas, other co-accused persons have been granted ad interim pre-arrest bail in same reference, have make out a case for their release on bail subject to furnishing surety, as the matter requires further inquiry.
Accordingly, the petitioners, namely, Shoaib Warsi in C.P.No,D-1199/2016 and Zuhair Siddiqui in C.P.No,214/2016 were admitted to bail vide short order dated 01.07.2016 subject to their furnishing solvent surety in the sum of Rs,2.000 million (Rupees Two Million Only) each with P R Bond in the like amount to the satisfaction of the Nazir of this Court with further directions to deposit their passports with the Nazir of this Court. Above are the reasons for such short order."
13. Further, reference can also be made to the case of Abdul Aziz Qazi v. National Accountability Bureau and 2 others (2012 MLD 777), while granting bail to the petitioners, it has been held as under:-- "It is plain from the record and/or FIR that name of the petitioner did not come out but in Reference it is mentioned that during his incumbency bogus and fraudulent entries were kept in the Record of Rights and therefore, because of such keeping of the entries he is also guilty of offences as reflected in the FIR. We may observe that the petitioner being one of the functionaries of the government department was working under his higher ups and/or concerned Mukhtiarkars and appreciating that the entries were made and were kept as such by other officials together with the petitioner, it is yet to be established, if there were any foul play by the petitioner in respect of the fraudulent entries for which further probe is obligatory. Such being the case, at present petitioner's case falls within Subsection (2) of section 497 Criminal Procedure Code and advantage thereof ought to go to him, more particularly when the co/main accused have been granted bail by this court which by itself is a reason enough, keeping the rules of consistency for bail to the petitioner. For the foregoing reasons, the petitioner was granted bail, by a short order dated 4-1-2012, subject to his furnishing a solvent surety in an amount of Rs,300,000 and PR bond in the like amount to the satisfaction of Nazir of this court."
14. In view of hereinabove facts and circumstances of the case, we are of the opinion that petitioners have made out a case of further inquiry, whereas, prosecution story cannot be considered as free from doubt. Moreover, there is inordinate delay in the completion of inquiry, investigation and conclusion of trial by the NAB Authorities, which has not been explained properly.
Petitioners were accordingly, granted bail by this Court vide our short order dated 19.6.2017 and above are the reasons of such short order.