1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- The applicant a retired Federal Secretary, has been sent up to face trial in Accountability Court, vide Reference No,16 of 2002 which reads as under:-- "Before the Accountability Court at Attock Fort in Reference No,16 of 2002 The State versus
(1) S. Barkatullah son of Sheikh Inayatullah resident of 25-A, Sunset Street 2, Phase-II, D.H.A., Karachi, Ex-Chairman, Employees Old-Age Benefit Institution.
(2) Muhammad Salim Son of Abdul Aziz resident of A-531, Block 11, North Nazimabad, Karachi, Ex- Deputy Director-General (Investment) Employees Old-Age Benefit Institution.
(3) Muhammad Tahir Siddiqi son of Muhammad Idrees Siddiqi resident of 63/11, Phase-V, Extension, 34 Street, Khayaban-eSehar, D.H.A., Karachi.
(4) Muhammad Zafar Iqbal son of Fazal Muhammad, resident of A-14, Dashtyar Apartments, Scheme No,33, University Road, Karachi.
(5) Syed Samir Rauf son of Syed Rauf resident of 5/11, "A" Street, Phase-V, D.H.A., Karachi.
(6) . Muhammad Tariq Siddiqi son of Muhammad Idrees Siddiqi resident of 63/11, Phase-V, Extension, 34 Street, Khayaban-eSehar, D.H.A., Karachi.
(7) Muhammad Siddiq Sheikh son of Zakir Hussain Sheikh resident of R-31, Block 5, Federal "B" Area, Karachi.
(8) Muhammad Salim Patni son of M. Ismail Patni, resident of 1735/583, Syed Mohallah, Baldia Town, Karachi.
(9) Humayun Sadiq son of Khawaja Ghulam Hussain resident of C-148/2, K.D.A.-1, Karachi-8.
(10) Syed Fahim Wasti son of Syed Tahawar Ali Wasti, resident of B-72, Block 10-A, Gulshan-e-lqbal, Karachi.
(11) Haq Nawaz Akhtar son of Lal Khan Balouch, resident of 12 Fountain Apartments, Kehkashan, Clifton, Karachi.
(12) Muhammad Asif Dar son of Muhammad Hassan Dar, resident of 225/C, Block 2, P.E.C.H.S., Karachi.
(13) Syed Haider Javed Rizvi son of Syed Sadiq Hussain, resident of 42/2, 20th Street, Off Khyaban- e-Mujahid, Phase-V, D.H.A, Karachi.
(14) Noman Ahmed Said son of Bashir Ahmed Said, resident of 485/C, Block 2, Tariq Road, P.E.C.H.S., Karachi.
2. Reference under sections 18(g) and 24(b) of the National Accountability Ordinance, 1999.
3. ' Respectfully Sheweth:--
(1) That with a view to providing security and benefits to the old-age employees of industrial, commercial and other organizations and matters connected therewith, the Employees Old-Age Benefits Act (No,XIV of 1976 was enacted. In exercise of its powers under section 4 of the said Act, the Federal Government, in 1981, established an Institution called the Employees' Old-Age Benefits Institution (EOBI), which is a body corporate, with powers, subject to the provisions of the Act, to acquire, hold and dispose off property, both movable and immovable. It is headed by a Chairman, appointed by the Federal Government in terms of section 8-A of the Act. Section 42 of the Act declares that the members and employees of the Board, and all officers and servants of the Institution are deemed to be public servants and are also holders of public office as defined in the NAB Ordinance, 1999.
(2) The exercise of its powers under section 44 of the Act, the Federal Government framed Employees Old-Age Benefits (Investment) Rules, 1979. Rule 3 of the said Rules empowers EOBI to invest any money not immediately required for expenses under the Act, inter alia, into Government Securities. The EOBI had, according to information so far collected, invested an amount of approximately 8426 million Rupees into purchase of Federal Investment Bonds (FIBs). From 1984 onward EOBI's Management, with the approval of its Investment Committee, has been entering into letter based Repurchase Option (Repo) deals with National Banks/Commercial Banks/Non- Banking Financial Institutions. As a consequence of these letter-based Repo deals EOBI had been earning net spread profit ranging from 1.5% to 25% per annum. Letter-based Repo deals were safe transactions because the FIBs remained with EOBI and there was no physical parting with the same. On 3rd June, 1990, Finance Ministry of the Government of Pakistan prohibited EOBI entering into Repo deals even with Commercial Banks. Later on the Federal Government vide its letter, dated 30-7-1996 permitted EOBI to enter into Repo deals only with NBFIs.
(3) That it was brought to the notice of the National Accountability Bureau that Sheikh Barkatullah, Ex-Chairman, EOBI in connivance with Muhammad Tahir Siddiqui, General Manager (Finance) of Prudential Commercial Bank Limited and others co-accused had committed the offences of corruption and corrupt practices and other Scheduled Offences in that they, in connivance with each other by dishonest, fraudulent and deceitful means, had deprived EOBI of FIBs of the face value of Rupees 1040 million deriving benefits of more than a billion of Rupees and had thus caused loss to the EOBI of Rs, 168,842,672 (Rupees one billion six hundred eighteen million eight hundred forty-two thousand six hundred seventy two) approximately.
(4) That the matter was referred to the Federal Investigation Agency for inquiry/investigation to ascertain the factual position. Investigation is still underway. Only three of the accused have so far been arrested, the remaining reportedly having either gone underground or left the country. Arrest of other co-accused is yet to be caused, and the recovery of a large portion of the misappropriated amount is yet to be effected. The Investigating Officer has, in the circumstances, submitted an interim report supported by documentary as well as oral evidence.
(5) That the investigation carried out so far has revealed that during the period from June, 1999 onwards Sheikh Barkatullah, in complicity and connivance with Muhammad Tahir Siddiqui and other co-accused, who acted as their henchmen, managed to obtain physical possession of FIBS of the face value of Rupees 1040 million, owned and held by EOBI, without any security and transfer of funds, under a purported Repurchase Option arrangement entered into between EOBI and three companies namely Pakistan Industrial and Commercial Leasing Company Limited (PICL), Prudential Discount and Guarantee House Limited (PDGH) and Prudential Securities Limited (PSL).
4. They use these three companies only as instruments for illegally acquiring/selling the FIBs and getting the sale proceeds siphoned into another company by the name of Republic Securities Limited (RSL) which company is controlled/owned by Muhammad Tahir Siddiqi. Having illegally sold the FIBs the accused persons then created fake Repo deal between EOBI and RSL on 3-2-2000 for the same FIBs, worth Rupees 600 million and between EOBI and Inter World Securities Limited
(IWSL) on 3-2-2000 for the same FIBs worth Rupees 440 million. These purported Repo deals were entered by EOBI with RSL, and IWSL without receiving back the FIBs from PICL, PDGH and PSL and without any security. To further cover up the illegal sale of the FIBs, the accused persons staged a drama of terminating the purported Repo deals with RSL and IWSL and created yet another fake security based Repo deal with the Bank of Ceylon (BOC) on 26-9-2000 again without receiving back the FIBs from RSL and IWSL. The purported security obtained from the Bank of Ceylon was a post-dated pay order of the amount of Rupees 1040 million issued by BOC. This pay order as well as correspondence with bank of Ceylon is reportedly forged/fake.
6. That the misappropriated amount was then funnelled into various companies controlled and owned by Muhammad Tahir Siddiqi besides being converted to the use of the accused persons, their associates, relatives and other persons. They have thus prima facie, caused a loss to the EOBI of Rs,1,618,842,672 (Rupees one billion six hundred eighteen million eight hundred forty-two thousand six hundred seventy-two approximately).
(7) That major chunk of the misappropriated amount is yet to be recovered. Efforts re: on to ascertain the names and particulars etc. Of other persons and companies/firms to whose benefit and use the sale proceeds of the FIBs have been converted/utilized. Some record is yet to be taken over from certain relevant quarters.
(8) That I have gone through the record placed before me and I am of the opinion that there is sufficient material already existing on record to justify filing of the Reference against the above- named accused persons who have committed the offences of corruption and corrupt practices and other scheduled offences as defined by section 9, and the Schedule to the National Accountability Bureau Ordinance, 1999. In view of the peculiar facts and circumstances of the case and considering the facts that the accused persons, some of whom are at large, are influential and powerful, and they through their associates control huge amounts of money and that they are in a position to harass and intimidate the witnesses and cause disruption of the trial in Karachi, I have decided to file the Reference in this Honourable Court at Attock Fort.
5. ' Interim Reference is, therefore, being submitted before this Honourable Court) against the above- named S. Barkatullah and other co-accused for their trial in accordance with law.
6. (Sd.) (Munir Hafiez) Lieutenant-General Chairman.
7. ' National Accountability Bureau, Islamabad. Dated 27th February, 2002."
8. ' Heard Mr. Abdul Ghafoor Mangi, learned counsel for the applicant and Messrs Navid Rasul Mirza and Muhammad Ghani, Special Prosecutors on behalf of the State.
9. ' The learned counsel for the applicant has submitted that a perusal of the entire reference shows that, there is no specific allegation against the applicant from which it can be said that there are reasonable grounds for believing that the applicant has committed any act coming within purview of the corruption or corrupt practices as defined in section 9 of the National Accountability Bureau Ordinance, 1999. He has drawn our attention to paras. 3, 5 and 8 of the reference, to show that co- accused Shaikh Barkatullah and Muhammad Tahir Siddiqui, committed the offences of corruption and corrupt practices in complicity and connivance with other co-accused. The learned counsel for the applicant further contended that neither any particulars of the acts and omissions on the part of the applicant. Haq Nawaz Akhtar have been shown in the reference nor any other evidence has been furnished to show that as to how and in what manner the applicant committed any corruption or was found engaged in any corrupt practices.. The learned counsel for the applicant vehemently argued that the liberty of a citizen cannot be curtailed merely on the basis of general allegations of corruption or corrupt practices and, therefore, the applicant is entitled to be released on bail.
10. On the other hand, the learned Special Prosecutors submitted that the bail application of co- accused Syed Samir Rauf, has already been rejected by this Court and that the applicant is involved in a white collar crime, causing huge losses to the State and, therefore, the applicant is not entitled to be released on bail. However, the learned Advocates conceded during the course of arguments that, the case of every accused person is to be considered on its own merits and on the basis of material available against him on record. If bail application of one accused is rejected or granted it cannot be a precedent for another accused in a stereotyped and mechanical manner.
11. Any earlier order of this Court in respect of any accused person is to be followed when it is established that the facts and circumstances in respect of both the accused are similar and they can be placed in similar position. We would like to emphasise that, merely because bail application of one accused person has been rejected or granted, it shall not be deemed sufficient to give same treatment to the other accused persons in pursuance of the law of consistency, until and unless it is shown that the nature of allegations against both accused persons are similar and they can be placed in same position. We, therefore, asked the learned Prosecutors to show us the acts and omissions alleged to have been committed by the applicant from which inference can be drawn that there are reasonable grounds to believe that the applicant has committed any corruption or was engaged in any corrupt practice. The learned Advocates were not able to place any such material before us, to make out a prima facie case of commission of corruption or corrupt practices by applicant Haq Nawaz Akhtar. They submitted that, the applicant being a retired Federal Secretary, became Director of the Companies which were engaged in corruption, causing huge losses to the State Revenue. According to learned Prosecutors the applicant was found lending his name. We are, not impressed with the contention because mere lending of name, by a person having acquired a particular status in the society does not amount to any commission of offence per se. At the most, it can be said that such person used his goodwill and mere utilization of good-will is not an offence per se, until and unless it can be shown that it has been used or exploited in a manner, not warranted in law or in a method which is not only immoral but illegal as well, and in doing so the said person has caused any wrongful loss to the State or has acquired any wrongful gain for himself or any of his relatives or any other persons connected to him. We would like to add a note of caution, that, merely in the name of white collar crime, the liberties of the citizens cannot be curtailed and the respectable persons cannot be allowed to be humiliated without sanction of law. Nobody's fundamental right of life, liberty, property, respect, honour and dignity can be curtailed otherwise than in due course of law. Nobody can be deprived of his honour, except when he is shown to have committed an offence punishable under the law. In the case of Imtiaz Ahmed v. State PLD 1997 SC 545, the Honourable Supreme Court has observed that, a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole, for the purpose of bail.
12. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. In the absence of an exceptional circumstance may be followed, but in the latter category the Courts should be strict in exercise of discretion of bail. The Honourable Supreme Court further observed that, the offenders who commit the offences as public functionary belong to a distinct class and further qualified to be treated falling within an exceptional circumstance of the nature warranting refusal of bail. It was further held that, the Courts should not be oblivious of the fact that the desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offence for monetary consideration. In the above scenario the Courts' approach should be reformation-oriented with the desire to suppress the above mischieves. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils. However, the Honourable Supreme Court added a note of caution that the said strict rule shall come into operation provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved. It was further observed that, it should not be overlooked that, Article 9 of our Constitution, which relates to a fundamental right, guarantees life and liberty of every person. Life inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right.
13. ' Respectfully following the above erudite and illuminating observations and guidelines given by the Honourable Supreme Court, the bail plea of co-accused Syed Samir Rauf, was refused.
14. Applying the same principles to the facts of the present case, we find that, no material has been produced before us to satisfy that prima facie the applicant is connected with the commission of offences alleged in the reference.
15. ' For the foregoing reasons, we are of the considered opinion that, on the basis of tentative assessm ent made by us, we find that, there are no reasonable grounds to believe that the applicant has committed the offence alleged but further inquiry may be held into the guilt of applicant/accused at trial and consequently, the accused/applicant Haq Nawaz Akhtar, is granted bail in the sum of Rs,10,00,000 and P.R. Bond in the like amount.
16. ' After hearing the learned Advocates for the parties on 18-4-2002, the bail was granted by short order. These are the detailed reasons for the short order.