MUHAMMAD SARWAR Versus NATIONAL ACCOUNTABILITY BUREAU
January 21, 2021 — LAHORE HIGH COURT LAHORE — — Qazi Misbah-ul-Hassan — 2021 PCrLJ 378
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Through this single order, we propose to decide the titled constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed by petitioner Muhammad Sarwar seeking the premium of bail before arrest and connected Writ Petition No.15208/2020 filed by Tahir Hussain, Writ Petition No.13681/2020 filed by Muhammad Akram and Writ Petition No.21709/2020 filed by Syed Ihsan Ali Shah whereby they have sought their release on post arrest bail in Investigation No.1(61)HQ/961/NAB-L dated 07.01.2019.
2. Succinctly, the accusation against the petitioners is that they, being employees of the Accountant General Punjab, Lahore, in connivance with the officials of the Directorate of Agriculture (Economics and Marketing) and Finance Department, made fraudulently payments to different private vendors through the Director of Agriculture (Economics and Marketing) while debiting different heads by passing 838 fake/fraudulent bills and cause loss of Rs.267.179 Million to the government exchequer.
3. We have heard learned counsel for the petitioners as well as the learned Special Prosecutor for NAB and perused the available record with their able assistance.
4. First of all, we take up the case of petitioner Muhammad Sarwar seeking the premium of bail before arrest, who has been saddled with the responsibility that he, being Senior Auditor in the office of the Auditor General Punjab, embezzled the funds by processing and forwarding fake bills of Sumbal Traders, Sumbal Filling Station and Tahir Traders. It was further alleged that he took 15 to 20% of the bills as his share of embezzled amount in the shape of cash as well as cheques. During the departmental fact-finding inquiry, the petitioner along with his co-accused (officials/officers of Payroll-13) of the Accountant General Punjab during years, 2015-2017, was found responsible for certifying 838-bills in contravention with their legal responsibilities and duties and he was dismissed from service. During investigation, it has been found that in the aforementioned period, the petitioner made huge transactions of Rs.11,000,000/- in his salary account which he could not justify. The petitioner has admitted the withdrawal of an amount of Rs.100,000/- by his son namely, Ali Hassan Sarwar via cheque from the account of co-accused namely, Syed Waqar Ali Shah as his share of the scam on his asking and the said fact was further admitted by his son before the investigating officer. Nothing is available on record to show that implication of the petitioner in this case was actuated with any mala fide intention or ulterior motives. The petitioner is more required to the investigating agency for the purpose of further investigation. Sufficient incriminating material is available on record to connect the petitioner with the alleged offence and, thus, he is not entitled to the extra-ordinary relief of pre arrest bail.
5. Petitioner Tahir Hussain, who is seeking post arrest bail, has been saddled with the responsibility that he, in connivance with his co-accused, got registered a company in the name of Tahir Traders as vendor in Accountant General for supply of goods to the Directorate of Agricultural (Economics and Marketing), Lahore and Agricultural Department, Punjab, prepared fake bills/vouchers in the name of Tahir Traders and got the same passed on account of fake bills, which were en-cashed in his account during year, 2015-2017. The claim of the petitioner is that his close relative namely, Syed Waqar Ali Shah got registered the aforesaid company in his name by using his identity card against an amount which he had given to said co-accused for investment purposes. He further added that in this respect he opened his bank account and authorized Waqar Ali Shah to operate the same. Further that he did not know about the activities of said co-accused with regard to the company and bank account opened in his name. During investigation, it was found that the company and bank account of the petitioner were being operated by co-accused Syed Waqar Ali Shah. The petitioner was arrested in this case on 04.10.2019 and during his physical remand of 68-days, no incriminating material could be recovered from him. Nothing is available on record to show that the petitioner had got any pecuniary benefit from the alleged scam. The petitioner is behind the bars since his arrest and his physical custody is not required to the police anymore for further investigation.
6. Petitioner Muhammad Akram was serving as Assistant Accounts Officer (AAO) with the allocation of Cost Center No.LO 4250 (Directorate of Agriculture (Economic and Marketing), Lahore. He passed/authorized fake bills of Directorate of the said Department without making pre-audit checks as described in his job description to forward bills to the Drawing and Disbursing Officer after its pre-audit. He was arrested in this case on 18.11.2019 and during physical remand of 54-days, no incriminating material could be recovered him. During investigation, no specific liability could be fixed against the petitioner and not even a single penny was found either transferred into his account or received by him in the shape of cash. From the material available on record, the case against the petitioner requires further probe and inquiry into his guilt by the learned trial Court after recording the evidence.
7. The role of petitioner Syed Ihsan Ali Shah in the alleged scam was that he, being Cashier in the Directorate of Agriculture (Economics and Marketing) Lahore, submitted bills and collected cheques from the office of Accountant General Punjab and got registered the aforementioned companies in the name of his co-accused for supply of goods to the Agricultural Department. He was further alleged to have prepared forged and fake bills/vouchers in the name of Sumbal Traders, Sumbal Filling Station and Tahir Traders and got the same passed with the abetment/assistance of the officials of the Accountant General Punjab. The petitioner has sought his release on post arrest bail on the medical ground and in response thereto, the office of the Superintendent District Jail, Lahore has submitted a report dated 08.01.2021 with regard to his health condition, which clearly shows that the petitioner was a known patient of hypertension, diabities mellitus and CVA with left hemiparesis i.e. weakness of left upper and lower limbs. The CT Scan revealed right basalganglionic pathology. He is being provided necessary treatment from the jail hospital since 13.05.2020, however he is suffering from paralysis, bed-ridden, unable to move, urinate, defecate or even change the clothes. It is clear from the aforesaid report that health condition the petitioner is not only deteriorated but also miserable. The petitioner was arrested in this case on 12.11.2019, the process of investigation is complete and his physical custody is not required for further investigation and, thus, he is also entitled to the relief claimed for.
8. In sequel of above discussion, Writ Petition No.67392/2019 is without any merit, the same stands dismissed. Ad interim pre-arrest bail already granted to the said petitioner vide order dated 11.11.2019 is hereby recalled.
9. Writ Petitions Nos.15208, 13681 and 21709 of 2020 are hereby allowed and petitioners Tahir Hussain, Muhammad Akram and Syed Ihsan Ali Shah are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.500,000/- (five lac) each with two sureties each in like amount to the satisfaction of learned trial Court.
MH/M-21/L Petitions allowed.