2010 PLP 2604 (YLR)

The present writ petition has been filed by the petitioner (fair-sex) for the grant of bail in Accountability Reference No.18 of 2009.

2. Brief facts of the case are that case F.I.R. No.19/2008 dated 10-7-2008 offence under section 420/468/471/409 P.P.C: read with sections 5(2) 47 of PEA and 5-C Police Station Anti-Corruption Establish?ment, Lahore was got registered against husband of the petitioner; although his name does not find mention in the F.I.R. but the same was incorporated in the police 'kaarwai' portion of the F.I.R. Actual F.I.R. is against the only one person namely Agha Nadeem and the complainant therein is also a gazetted officer namely Khalid Mehmood Mela, Secretary PTA. It is further found that there was no other accused involved in the narration of F.I.R. and the most important fact is that in Accountability Reference No.18 of 2009 filed by the NAB, the nominated accused of the F.I.R. has never been arrayed. The matter remained with the Anti-Corruption Authorities and by way of section 16-A of NAO, 1999 the case was requisitioned and the reference was filed by the NAB authorities before the Accountability Court.

3. Learned counsel for the petitioner submits that earlier the petitioner filed her post-arrest bail petition before this Court vide W.P. No.20703/2009 which was fixed for hearing on 18-11-2009 and the same was disposed of on the statement of learned Special Prosecutor for NAB that the plea bargain of the present petitioner was in vogue, thus the petition was not pressed and was disposed of. Learned counsel further submits that there is no plea bargain of the petitioner with the NAB authorities and if at all it was, the same was under coercion and influence exerted by the NAB authorities upon the petitioner; that the petitioner is an illiterate lady and cannot count small cash even, husband of the petitioner was serving as cashier and that being wife of the accused Shamshad Gulzar she was bound to put her thumb impressions and signatures as per the instructions of her husband; that the petitioner has a minor baby aged about three years who is in a very critical position and has become helpless because of non-availability of his mother (i.e. present petitioner); that the petitioner remained under remand and was severely tortured by Nadeem Sajid, Investigating Officer of the case; that during physical remand, the said I.O. forcibly obtained so many signatures and thumb impressions of the petitioner on computerized English typed papers as well as blank papers and as the petitioner was helpless, therefore, she could not do anything; that no useful purpose will be served if the petitioner remains behind the bars; that the bank account of the petitioner has already been seized at the very first instance, hence there is nothing with her to live on with and that she has small house, electricity/sui gas meters of which have also been disconnected under the influence of NAB authorities; that the petitioner has no other source of income to pull on even in her normal/routine life and her children are at the mercy of relatives.

4. On the other hand, learned Special Prosecutor for NAB submits that the D.G., NAB authorized an inquiry into the subject case on 14-2-2008, which was later on upgraded into investigation vide letter No.l(61)HQ/401/NAB-P dated 23-9-2008; the investigation was authorized against Shamshad Gulzar, Farhat Shamshad (present petitioner) wife of Shamshad Gulzar, Afzaal Gulzar and Muhammad Shahnawaz; that the main accused Shamshad Gulzar, husband of the present petitioner, prepared 12 bogus bills and fraudulently encashed Rs.400 Million through 11 cheques from State Bank of Pakistan by affixing his signatures; that after embezzling these 400 Million rupees, the prime accused namely Shamshad Gulzar took his share and deposited more than Rs.150 Million in the Bank account of Farhat Shamshad, pres'6nt petitioner; that all the accused persons including the present petitioner absconded and were later on apprehended by NAB after grueling endeavors; that the principal accused namely Shamshad Gulzar, was arrested on 15-6-2009 but arrest of the present petitioner was not effected on compassionate grounds and she was left free on the promise that she will enter into plea bargain by surrendering .exorbitant illegal gain owned by her, but she tried her level best to retain illegal gain to the tune of Crores of rupees, so she was arrested on 17-7-2009 against arrest warrants issued by D.G. NAB Punjab dated 23-6-2009; that after her arrest, the petitioner consented to surrender all illegal gains and requested for the approval of plea bargain, which has been approved by the competent authority and the Chairman, NAB has graciously waived off 15% additional incidental charges keeping in view her being a lady. Learned Special Prosecutor for NAB further submits that NAB has nothing to do with the F.I.R. registered by Anti Corruption Establishment; that the investigation was authorized against the petitioner by name by the D.G. NAB Punjab vide letter No.1(61)HQ/401/NAB-P dated 23-9-2008 and consequently she was arrested.

5. Heard, Record perused.

6. It is found that the petitioner was purchasing so many properties with crime proceeds, knowing the fact that her husband is just a poor clerk and is doing something fishy and is amassing immoveable properties, costly vehicles and other assets through illegal and dishonest means. Under temptation of the petitioner, her husband used to commit fraud and after illegal and deceitful withdrawal of public funds by her husband with mala fide intention of embezzling the same, she actively aided and abetted her husband in carrying ill-gotten cash and depositing the same in her bank account No.0201-54240-01 maintained with NIB Bank, Bank Square Branch, The Mall, Lahore. Then in order to complicate the money trail she deliberately transferred these crime proceeds to the account of Afzaal Gulzar bearing No.0201-0048680-01 also maintained with NIB Bank, Bank Square Branch, Lahore. Within only few months Rs. 15,47,55,000 were credited in her bank account, most of which she further transferred in bank account of Afzaal Gulzar. Thereafter, the petitioner actively purchased immoveable properties in her name as well as in the names of her children. Eventually when the petitioner knew that the government agencies are probing into their bank accounts, she transferred Rs.2,19,36,050 in bank account No.52102005628301 titled Shamshad Gulzar and Farhat Shamsand maintained with Bank Alfalah Gulshan Ravi Branch, Lahore. According to the definition of "associate" as defined in Section 5(d) of NAO, 1999, "associate is any person who is or has been managing the affairs for or keeping accounts for the accused or who enjoys or has enjoyed any benefit from the assets" and the petitioner is not merely a "Benamidar" rather an associate.

7. Before arrest of the accused persons their counsel Mr. Zafar Mehmood Chaudhry, Advocate filed Writ Petition No.6698/2009 titled "Shamshad Gulzar v. Chairman NAB & others" in this Court and it was mentioned in the writ petition that the accused Shamshad Gulzar and Farhat Shamshad intend to enter into plea bargain and requested this Court to direct NAB authorities to accept their plea bargain. Similarly, the learned counsel of the accused also filed Writ Petitions Nos.8358 of 2008, 10599 of 2008 and 2070 of 2009 in the Court and the learned counsel for the petitioner also stated before the Accountability Court on 18-9-2009 that she has submitted application for plea bargain with the NAB authorities, so she may be sent to judicial lock up instead of extending her physical remand. The Investigating Officer also stated that the petitioner has given application for plea bargain, therefore, her physical remand is no longer required. Likewise, during the request for extension in physical remand of the petitioner made to the learned Judge Accountability Court, the learned counsel of the accused stated that she has submitted plea bargain application with the NAB authorities.

8. The petitioner submitted plea bargain application without any coercion or undue influence and consequently the Chairman, NAB has graciously approved her plea bargain application. After tracing the whereabouts of the petitioner, the NAB did not effect her arrest for 32 days as she was given a chance to apply for plea bargain without arrest, but failing to surrender ill-gotten wealth through plea bargain, she was ultimately arrested on 19-8-2009. Later on, the investigation offered the petitioner maximum relaxation and her request for plea bargain was approved by Chairman NAB waiving 15% incidental charges in order to expedite her release, but her plea bargain application proved to be shenanigan to evade the investigation and she ultimately refused to own her plea bargain application before the learned Accountability Court. The NAB provided maximum relaxation to the peti?tioner to get herself out of prison, but she is adamantly squatting over ill-gotten assets worth over Rs.120 million and is not ready to surrender the same to National Exhequer through plea bargain. The husband of the petitioner namely Shamshad Gulzar, the 'main accused, gave acknowledgement to the State Bank officials and beyond any shadow of doubt received more than Rs.40 Crores (400 Million), but so far he could hardly account for Rs.31 Crores (310 Million), thus the family of the accused it still sitting over and squatting over at least Rs.7 Crores (70 Million) with them. The petitioner being of fair-sex played hide and seek, she has been running an account of more than Rs.400 Million and cannot be termed as illiterate, therefore, we are not inclined to grant her bail; accordingly, this petition stands dismissed.

9. Before parting, it is also pointed out that we have retained the record of this case, produced by the Investigating Officer NAB, and have gone through the same minutely. Although the learned Special Prosecutor NAB submits in his parawise written reply that the NAB has nothing to do with the F.I.R. registered by the Anti-Corruption Establishment, but note of the fact was taken with great concern by us and it was found that Agha Nadeem despite being named as principal accused in the F.I.R. has not been arrayed as accused by the NAB authorities in their Reference. There is letter dated 21-2-2007 whereby the co-accused namely Shahnawaz after retirement was granted a contract of one year and he has been signing all the bogus cheques on behalf of the Secretary Transport. We have also seen all the bills wherein for drawing and disbursement, a lot of illegalities have been committed, but no body has bothered to take note of the same; however, it is reminded that any bill or cheque over five Lacs of rupees is always a Cross-Cheque, but the accused has been receiving the cash directly. In the first inquiry vide Transport Notification No.SO(NTS)1-79/2002 (RD-GC-11) dated 25-7-2008, it was held that heads of the departments are responsible for controlling expenditures over the grant placed at their disposal and the Drawing & Disbursing Officer (DDOs) are the officers directly responsible for the expenditures incurred against the funds allocated to them under different heads. We yet find another inquiry report dated 9-7-2008 approved for proceedings by the D.G., ACE, Punjab. In both the inquiries, allegedly Agha Nadeem has been held responsible, but no action against him has been taken. We therefore, direct the NAB authorities to join Agha Nadeem with the investigation and file a reference against him in the Accountability Court. A.R.K./F-22/L???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.