2023 PLP 1493 (YLR)

MUHAMMAD FAISAL KAMAL ALAM, J.

By this order all the three Constitution Petitions are decided.

2. Petitioner Ali Gohar (in C. P. No. D-3283 of 2016) is on pre-arrest bail, so are Petitioners Ghulam Mustafa, Ghulam Hussain and Ghulam Muhammad (in C. P. No. D-618 of 2019); whereas, Petitioner Muhammad Ali Pahanwar (in C. P. No. D-481 of 2020) is in jail.

3. All the above accused have been implicated in Reference No. 06 of 2019 sub judice in the learned Accountability Court at Sukkur.

4. As per the version of Respondents

NAB mentioned in the Reference and the Investigation Report, the above accused in connivance and in collaboration with each other were involved in illegally appointing seventy eight (78) persons in District Health Office, Naushahro Feroze and unauthorized payments of salaries of seventy six (76) officials (of BPS-01 to 09) and in some cases also unlawfully changed their cadre, by violating the Sindh Civil Servants Rules, 1974. All the appointments were made without issuance of advertisement, formation of District Recruitment Committee (DRC) and complying other codal formalities. The total loss caused to Government exchequer has been estimated as Rs.9,38,11,1641-. It is stated that the above accused persons in collaboration with other co-accused have committed the offence of corruption and corrupt practices inclusive of misuse of their official authority as envisaged in Section 9 and punishable under Section 10 of the National Accountability Ordinance, 1999 (NAB Law).

5. Learned counsel for the Petitioners state that this Court in other Constitution Petitions, C. P. No. D-4581 of 2016, has granted bail to other co-accused. They have placed on record copy of the Order, which is taken on record (a copy whereof is also available in the Court file). They further state that in the above cited Order, it was observed by this Court that although the inquiry was authorized in the matter on 23-10-2013 but even after passage of four years (at the relevant time when the above Order was passed by this Court), Reference was not filed in the Accountability Court. Contended that role assigned to the Petitioners in C. Ps. Nos. D-618 of 2019 and D-481 of 2020 is the same which was assigned to the petitioners of C.P. No. D-4581 of 2016 to whom concession of bail was extended, hence, applying the rule of consistency, interim pre-arrest bail of Petitioners in C. P. No. D-618 of 2019 may be confirmed and post-arrest bail to Petitioner in C. P. No. D-481 of 2020 may be granted. Learned counsel for the Petitioners have also relied upon a reported decision of Hon'ble Supreme Court, viz. 2008 SCMR 1118 (The State and others v. M. ldrees Ghauri and others) - Idrees case, in support of their arguments that the allegation of misuse of authority per se is not sufficient unless its two basic ingredients of mens rea and actus rus coupled with illegal gain or receiving undue benefit, if are not present, then misuse of authority is not culpable.

6. Learned Special Prosecutor, Mr. Muhammad Zubair Malik, has opposed the bail and contends that the record contains ample evidence that in making illegal appointments, rules and procedures were violated, which is mentioned in the Investigation Report itself. He has cited the case law reported as 2004 SCMR 158 (Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another) - PIA case and PLD 2016 Supreme Court 276 (The State v. Anwar Saif Ullah Khan) - Anwar case. 7 Arguments heard and record perused.

8. The cases relied upon by the learned Special Prosecutor are distinguishable because the first case of PIA is a service matter wherein employment of respondent (of the reported case) was terminated by not following the service rules which was restored by the learned Federal Service Tribunal and was maintained by the Apex Court. The second Judgment in Anwar case is the appeal filed by the State against the respondent, who was acquitted by the learned Lahore High Court, which reversed the decision of learned Accountability Court, which has recorded his conviction, set aside by the Hon'ble Supreme Court and decision of Trial Court was restored with some modification. However, in the present case the trial is yet to be completed in the above Reference by the learned Accountability Court and culpability of each accused is yet to be determined, thus, both decisions are distinguishable. The Judgment of Idrees case relied upon by the Petitioners' counsel is examined, which is also a decision handed down in criminal appeals after the final determination by the learned Trial Court and the learned Appellate High Court, thus, it is hardly of any assistance to the case of Petitioners.

9. Above Reference together with Investigation Report are taken into the account. Role assigned to Petitioners/ accused in C. Ps. Nos. D-618 of 2019 and D-481 of 2020 is the same which was attributed to the petitioners of above referred C. P. No. D-4581 of 2016, to whom the concession of bail was earlier extended by this Court vide Order dated 15-08-2017. It is alleged that all these accused persons did not follow codal formalities, that is, publishing of advertisement, formation of DRC, "and they violated Rule No. 327 of Audit Manual and Rule No. 73 of Audit Code, and the loss caused to the National exchequer could have been prevented if these Petitioners / accused have exercised their lawful authority diligently."

10. Investigation has been completed and there is no likelihood that accused/ Petitioners could either temper with the evidence or influence the witnesses; thus, in view of the above discussion and applying the rule of consistency to the cases of Petitioners / accused in C. P. No. D-618/2019, where interim pre-arrest bail which was granted on 06-07-2018, is hereby confirmed on the same terms. Applying the same rule to the case of accused Muhammad Ali Pahanwar, Petitioner in C. P. No. D-481 of 2020, who is presently incarcerated, he has also been extended the concession of bail on the same terms, that is by furnishing solvent surety in the sum of Rs. 2,00,000/- and P.R. bond in the like amount to satisfaction of the learned Accountability Court at Sukkur within fifteen days. He will be released if not required in any other criminal case.

11. The case of Ali Gohar Dahri in C. P. No. D-3283 of 2016 is different. At the relevant time when the illegal appointments (allegedly) were made in the Health Department at District Naushahro Feroze, the said accused/Petitioner was the District Health Officer (DHO). There is a specific allegation that he has violated the recruitment rules and procedures, inter alia, Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Prima facie, accused No.1/Petitioner being DHO was administratively in a position to forestall the illegal appointments but he did not make any effort in this regard. Being one of the decision makers in the entire episode, his role, obligation and responsibility was different from other co-accused/Petitioners. Considering certain observations made in the afore referred Bail granting Order of this Court with regard to Prosecution, benefit of bail is however, can be extended even to this accused, but on the modified terms. Pre-arrest bail of this accused No.1/ Petitioner is confirmed upon furnishing solvent surety in the sum of Rupees Five Million and P.R. bond in the like amount to the satisfaction of learned Accountability Court at Sukkur, within fifteen days, failing which the concession of bail shall stand withdrawn and the C. P. No. D-3283 of 2016 stands dismissed.

12. It is expected that trial will be concluded expeditiously. No observation made herein will in any way influence the trial proceeding and the decision. SA/A-24/Sindh Bail granted.