By this common order , we intend to dispose of above captioned two petitions being having similarity and commonality of question of facts and law. The petitioners namely , Abdul Sattar Farooqi (Accused No. 8 in the Reference) and Muhammad Tahir Shahzad (Accused No. 22 in the Reference), through their respective petitions, seek their release on post-arrest bail in Accountability Court Reference No. 17/2018-M lodged under section 18 (g) read with section 24 (b) of the National Accountability Ordinance, 1999, wherein they were arrayed as one of the accused.
2. Precisely , the facts necessary for adjudication of both these petitions are that upon receipt of a complaint referred by the Accountant General, Punjab against the officers/of ficials of District Accounts Office (DAO) and District Education Officer Bahawalnagar on the allegations of misappropriation/embezzlement of public exchequer by paying salaries, allowances, arrears etc. to the ghost/bogus employees, an inquiry was authorized in the matter , which was later on up-graded into investigation vide Letter No NABM20170925100273/Inv/75 dated 05.03.2018 and consequently two Accountability Reference No. 17-M/2018 & 18-M/2018 were placed before the Judge Accountability Court Multan and the petitioners/ accused were sent to face the trial under Section 9(a)(iii)(iv)(vi) &
(xii) of National Accountability Ordinance, 1999 (hereinafter referred as "NAO, 1999") and schedule thereto.
3. Learned counsel for the petitioners submitted that as per lodgment against the petitioners, no offence whatsoever is made out under the penal provision of "NAO, 1999". They added that NAB has exceeded its authority , while taking cognizance of the matter in issue. Learned counsel for the petitioners submitted that Muhammad Tahir Shahzad petitioner was arrested in execution of warrant of arrest on 21.7.2018 while Abdul Sattar Farooqi petitioner was arrested in execution of warrant of arrest on 22.6.2018 and since then they are in custody awaiting their trial. They added that it is an inalienable right of every accused to have an expeditious trial in order to avoid the, protracted incarceratio n. Learned counsel contended that early conclusion of trial is not in sight and the petitioners are suffering behind the bars without their guilt being proved. Learned counsel submitted that post-arrest bail petition of co-accused namely Mukhtar Ahmad who was serving as Accounts Clerk has already been allowed by this Court vide order dated 08.05.2019. Learned counsel maintained that role of petitioners are at par with that of their co-accused, therefore, under the rule of consistency , the petitioners are also entitled to the concession of post-arrest bail.
4. Conversely , learned Special Prosecutor NAB vehemently resisted both the petitions and submitted that during the course of investigation the petitioners have been found fully involved in the crime. It is also argued vehemently that the petitioners' case falls under special law, which does not recognize the grant of bail and because the provisions of section 497, Cr.P.C. is not applicable therefore, the petitioners cannot be granted bail. Further maintains that the petitioners in connivance with their co-accused have caused loss of huge amount of Rs.
18,005,453/- to the National Exchequer; therefore, both the petitions are liable to be dismissed.
5. We have heard learned counsel for the petitioners as well as learned Special Prosecutor NAB and also perused the record.
6. It is quite evident from the available material that Muhammad Tahir Shahzad petitioner remained posted as Accounts Clerk at Dy. DEO (EE-W) Tehsil Chishtian from May 2014 to February 2018 and during his posting he processed Source-I Forms of six and Source-II Forms of five fake/bogus employees by affixing his initial. He in connivance with Shafiq Ather and Jave d Iqbal was involved in preparation of fake/bogus documentations of appointment of illegal employees. He in assistance with Azhar Iqbal AAO also got issued salaries & adjustment bills of bogus/fake employees from DAO Baha walnagar . During investigation, he got recorded statement under section 164 Cr.P.C, wherein he admitted that he got prepared and entered ten class four employees on the basis of fake/bogus appointment orders after taking bribe from them. He also allegedly obtained amounts of adjustment bills which were credited in bank accounts of bogus/fake employees by DAO illegally .
7. Likewise, the allegation against the petitioner Abdul Sattar Farooqi is that he in connivance with other employees of District Accounts Officer, Bahawalnagar has caused loss to National exchequer to the tune of Rs. 11,683,923/- when he remained posted as Senior Auditor and Assistant Accounts Officer (AAO) at DAO, Bahawalnagar from 2006 to date. However , he remained on some training during 2008-09 and served AG (Punjab) Office, Lahore for three months in between that 'period. While posted at DAO, Bahawalnagar he performed different assignments including payroll section of Dy. DEO (EE-W), Tehsil Fort Abbas. He allegedly pre-audited 9x Source-I Forms of bogus/illegal employees (4x C-IV & 5x teachers) as AAO by affixing his initials/signatures and entered/punched data of 5x bogus employees in SAP in capacity of KPO, including date of 2x fake teachers namely Mehru Nisa and Fozia Khursheed. He also pre-audited Source-II Forms of 5x illegal/fake employees (4x C-IV) & 1 teacher), including adjustment bill of Manzoor Ahmed.
8. No doubt it is well settled proposition of law that deeper appreciation of evidence is not permissible at bail stage but keeping in view the role assigned to the, petitioners it is essential to see whether they were the sole authority or at the helm of affairs to make orders qua appointment or transfer etc. Admittedly , Muhammad Tahir Shahzad petitioner remained posted as Accounts Clerk at Dy. DEO (EE-W), Tehsil Chish tian while Abdul Sattar Farooqi petitioner remained posted as Senior Auditor and Assistant Accounts Officers at DAO, Bahawalnager and they had no authority qua the appointment/ transfer of any employee while the authority and responsibility of DDO in matters of financial control is very vast as he or she has to deal with all financial transactions from inception of proposal to implementation. Specifically , in the matter of salaries and other bills related to allowances, adjustments, GP fund etc. of non-gazetted government employees (i.e. from BPS-01 to BPS-15) the concerned DDO is responsible to check each aspect of a bill and then forward the same to District Accounts Officer for processing under the rules.
The DDO concerned is also expected to reconcile the expenditures incurred on monthly basis with the District Accounts Office, so that any kind of misappropriation in public exchequer could be avoided. However , at this stage we are sanguine that guilt of the petitioners cannot be decided whether they are involved in the offence of corruption or corrupt practices. To a specific question asked by us to the Special Prosecutor , NAB and the Investigating Officer whether any gratification or any abnormal bank transaction or activity was noted in their bank accounts or any asset was acquitted by the petitioners in their own name or ostensibly , the answer of the I.O. was in negative that no such incriminating material was collected or found available against them. Even otherwise, after examining the material available on the, record and gist of allegations against the petitioners, we are of the considered view that case of the petitioners is at par with their co-accused namely Mukhtar Ahmad who has already been granted post-arrest bail vide order dated 8.5.2019 in W.P. No 5503 of 2019, therefore, in view of principle of consistency the petitioners are entitled to the concession of same relief.
9. Apart from the above, we are unable to find out the basic elements of an offence of corruption and corrupt practices in the transaction in question within the meanings of section 9 (a) (vi) read with section 10 (a) of the NAO, 1999 as there is no concrete evidence available with the prosecution to point out that the petitioners have derived any personal benefit. A glimpse to section 9 of the NAO, 1999 allude to gist of acts of corruption and corrupt practices which makes a holder of a public office or any other person liable to be punished. The acts include acceptance of any gratification directly or indirectly as the motive or reward as specified under section 161,. P.P.C. for doing or forbearing to do any official act in exercise of its official function favour or dis-favour to any person or rendering any service or disservice to any person or if he accepts or obtains or offers any valuable thing without consideration from any person or if dishonestly or fraudulently misappropriate or otherwise converts of his own use or if he by corrupt, dishonest or illegal means obtains for himself or for his spouse or dependents or property or pecuniary advantage or if he or any of his dependents or benemidars owns and possesses right or title in any asset. Whereas, the Sub-clause (iv) of clause (a) of section 9 pertains to misusing of authority by a holder of a public office or any other person so as to gain any benefit or favour , for himsel f or any other person etc. This Section is very exhaustive by itself but we have austerely quoted the nucleus of the acts which may be considered involvement of holder of a public office or any other person in corruption and corrupt practices. The purpose of highlighting the salient features is to accentuate that during course of inquiry and investigation, it is incumbent upon prosecution to collect ample incriminating material for exposing the involvemen t of accused in corruption and corrupt practices which is inescapable and unpreventable. It is often seen that in NAB reference, the role of each accused is separately delineated and call out to show his involvement bearing in mind the incriminating material collected during investigation. Reliance is placed on "Sarfraz Ahmed and another vs. The Chairman National Accountability Bureau (NAB) through Chairman and others" (2016 P .Cr.L.J. 79) .
10. There is yet another important aspect of the case that on the issue of pecuniary jurisdiction, learned High Court of Sindh at Karachi, in a case reported as "Rauf Bakhsh Kadri vs. The State " (2003 MLD 777), has held "the discretion of the Chairman, N.A.B. or an officer authorized by him to, file a reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining to the accused would be in the national interest. In the absence of such satisfaction a case could only be triable under the ordinary law" . Similarly , learned High Court of Sindh at Karachi in C.P. No. D-1210 of 2016 "Amjad Hussain vs. Chairman NAB & anothe r" regarding the pecuniary jurisdiction has held as under: "41. This is because there may be cases falling below Rs. 100M which cannot be prosecuted by any other agency and as such rather than letting the culprit off scott free he/it should be prosecuted by NAB at the discretion of the Chairman. However in cases below Rs. 100M which can be dealt with by other agencies such as FIA, ACE we would expect NAB to send such cases to such alternate agencies for prosecution by virtue of Section 18 (d) of the NAO, which reads as under:--
11. After perusal of the above-quoted judgments, we are of the view that the amou nt involved in the instant matter is not of large magnitude as has been held in the above-referred judgments. Thus, in view of the above, principles enunciated in the judgments (Supra) and keeping in view the facts and circumstances of the instant case, we have no hesitation to hold that there exists reasonable grounds for further inquiry into the guilt of the accused and in such an eventuality the accused becomes entitled to bail as a matter of right but not grace. The liberty of an accused cannot be curtailed on the basis of superfluous allegations.Reliance in this respect can be placed on "Ehsan Ullah vs. The State " (2012 SCMR 1137) and "Ikram-ul-Haq vs. Raja Naveed Sabir and others" (2012 SCMR 1273 ).
12. Muhammad Tahir Shahzad petitioner was arrested in execution of warrant of arrest on 21.7.2018 while Abdul Sattar Farooqi petitioner was arrested in execution of warrant of arrest on 22.6.2018 and despite lapse of considerable time i.e. more than a year there is no possibility of early conclusion of trial in the instant case, so the petitioners cannot be kept behind the bars for an indefinite period on the basis of an offends which is yet to be established by the prosecution. Even otherwise, the commencement of trial could not come in the way of grant of bail, if in the opinion of the Court, a case for further inquiry was made. Relian ce is placed on "Syed Khalid Hussain Shah v . The State" (2014 SCMR 12 ).
13. Coming to contention that the petitioners are not entitled to the grant of bail as they are involved in a case falling under the special law is concerned, the crime is always a violation of law irrespective of the fact that it falls under the Special Law or Ordinary Law, however , the Courts without considering gravity and severity of the crime should have to evaluate the material & the role assigned to the perpetrator for the purpose of grant refusal of bail.
This principle of criminal jurisprudence is based on a latin maxim, i.e. Sauce for the goose sauce for the gander . It is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality . It may be stated here that both under the Anglo-Saxon concept of criminal jurisprudence as well as Islamic dispensation of criminal justice, the initial presumption of innocence of an accused charged with a criminal offence is not dislodged until he is proved guilty .
Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, also provides that a person will not be deprived of his life and liberty except in accordan ce with the law. Therefore, bail cannot be refused in a case by way of punishment. Reliance is placed on " Imtiaz Ahmad v . The State" (PLD 1997 SC 545 ).
14. In view of above discussion, we are in agreement that no exceptional grounds exist to deprive the petitioners from their liberty by refusing the post-arrest bail. Consequently , both these petitions are allowed and both the petitioners namely , Abdul Sattar Farooqi and Muhammad Tahir Shahzad are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 5,00,000/- (five lac rupee) each with two sureties each in the like amount to the satisfaction of the learned trial Court. The petitioners shall appear before the learned trial Court on each and every date till final disposal of the instant prosecution case.
15. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of grant of instant bail.