2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned Constitution Petition, petitioner Muhammad Faisal has prayed for his enlargement on post-arrest bail, in Reference No. 21 of 2016, under sections 18 and 24 of the N.A.O., 1999, filed by the NAB authorities against the petitioner and 21 other accused persons.

2. Per investigation report available on record, NAB authorities had initiated inquiry against several officers that they in connivance with each other, had created 164 bogus IDs of illegal appointees using Cost Centers of Education Department Mirpurkhas and illegally paid huge amounts to the tune of Rs.8,92,35248/- under the garb of salaries. It is further alleged that by misusing their authority, officials of District Accounts Officer, Mirpur Khas continued creating, hiring, activating, transferring and causing changes in SAP Master Data. Simultaneously, officers of Education Department Mirpurkhas were also engaged in said criminal negligence and in connivance with officers and officials of District Accounts Offices of Mirpurkhas, Jamshoro and Tando Allahyar. Accused persons failed to ascertain the genuineness of illegal and bogus appointees who were illegally withdrawing salaries from their Cost Centers. Allegedly, Muntazir Mehdi Chandio (accused No.1), Muhammad Faisal Panhwar (accused No.2), Saeed ur Rehman (accused No.3), Muhammad Zulfiqar Ali (accused No.4) and Muhammad Yousuf (accused No.5) had illegally hired and activated 26, 38, 17, 2 and 1 bogus IDs of illegal appointees and transferred the same into SAP Master Data, hence accused caused losses to the Government exchequer. Similar nature of allegations, have been leveled against the rest of accused persons.

3. Learned Counsel for petitioner, inter alia, contended that petitioner is innocent and has been falsely implicated in instant case with ulterior motives; that petitioner was only a Data Processing Assistant and was maintaining record as provided by the higher officials and all entries were available in the office of District Accounts Office, Mirpurkhas which were linked with all concerned servers with various authorities. Learned Counsel further emphasized that prime object to examine the genuineness of the orders of new appointees, was the exclusive responsibility of the District Accounts Officer and other concerned higher officers that the alleged offence had been committed continuously for last many years and no one could bother to check the alleged illegality. Even no such report from Cyber Crime Expert was sought by the NAB authorities though instant matter was pertaining to SAP (System Application Program), which is software of Information Technology System, hence Cyber Crime Expert ought to have been examined during the course of investigation but the same has not been done, which is fatal to the entire prosecution case. It is further contended that record is entirely silent about the details of alleged fake 38 IDs and even no specific amount for causing loss by the petitioner to the government exchequer has been mentioned; that petitioner is in custody since 01.03.2016 and is no more required for further investigation but trial has yet not been commenced; that there are joint allegations against 22 accused including women officials of Education Department for misappropriation of the entire amounts which requires further inquiry. Learned Counsel has relied upon 2012 MLD 777, 1995 SCMR 170, 2008 SCMR 1118, PLD 2002 Karachi 486 and Copy of Order dated 15.06.2016 passed by the High Court in C.P. No. D- 223/2016.

4. While controverting the above submissions, learned Special Prosecutor for NAB vehemently contended that name of petitioner is mentioned in reference and sufficient material has been collected pertaining to the direct involvement of petitioner in the alleged offence as he was maintaining the record of bogus IDs in his computer; that two persons out of 164 bogus IDs, were examined by the Investigating Officer. However, he candidly submitted that neither 164 IDs/fake employees have been included in the array of accused nor they have been made witnesses and even the amounts received by them in shape of salaries, have not been recovered during the course of investigation.

5. Perusal of record emanates that petitioner being an employee of the office of Accountant General, Sindh, was posted in District Accounts Office, Mirpurkhas as Junior Auditor/Computer Operator in BPS-11. Petitioner along with other co-accused, has been implicated by the NAB authorities under the allegations of opening of 164 bogus IDs in District Accounts Office, Mirpurkhas in connivance with the officers/officials of District Accounts Office and District Education Office, Mirpurkhas, while two Computer Operators were officially working in said office i.e. petitioner and Muntazir Mehdi Chandio.

6. Indeed, District Accounts Officer, Additional District Accounts Officer and Sub-Accountant were bound to supervise the entire work of District Accounts Office, and to verify the genuineness of the record of FO-1 and FO-2 etc. and petitioner being Junior Auditor and Keypunch Operator was under obligation to update the ID system through record provided by the concerned officers. It is further averred that per procedure in vogue, the file of new employee was being processed by many officers working in the said office, as such the new file after moving from one table to another ultimately used to reach to the desk of Computer Operator and said file usually contained all the relevant record required for opening of ID.

7. Petitioner according to his job description, has been maintaining and updating the record, forms and data provided by the District Accounts Officer, Accountant and Sub-Accountant of said office, in the computer data which was available in said office, nevertheless, it was not in his domain of authority to object the approval of sanctioned posts and allocation of budget etc. It further reflects that to examine and verify the genuineness of the relevant record pertaining to the new appointments, was the exclusive authority of the District Accounts Officer, Additional District Accounts Officer and Sub-Accountant of District Accounts Office, Mirpurkhas, while link server was available in the office of Accountant General Sindh, Karachi, along with the office of Controller General of Accounts (CGA), Islamabad, thus the allegations for opening of fake IDs do not convince to the prudent mind that without the directives, knowledge and permission of the superior officers, it was quite impossible for any Computer Operator to open any fake ID secretly.

8. Instant inquiry was initiated on the bases of two complaints made by individuals i.e. one complaint was made by an unknown person without mentioning his name and address which was received by NAB authorities on 14.11.2014, and other complaint was moved by Muhammad Qasim Soomro dated 06.09.2013, but complainant was neither examined by the Investigating Officer nor he has been cited as witness in the list of witnesses.

9. Per investigation report, the alleged offence had been committed continuously for last many years but no such complaint or any action regarding the opening of fake IDs was ever initiated against the petitioner, while Investigating Officer has failed to collect the scanned record of the alleged 38 illegal IDs of fake employees. Conversely, specific dates and time of the entries of alleged 38 bogus IDs have not been mentioned explicitly in reference as well as in investigation report by mentioning their names and total amounts of their salaries drawn by them, nor it has been clarified that out of alleged 164 illegal IDs, which 38 IDs were made by petitioner in SAP (System Application Program). Even specific names and total embezzled amount allegedly received by petitioner, have not been expressly mentioned in order to ascertain the total amount of gains by him nor total liability for causing loss to the Government exchequer, has been mentioned, therefore, specific amount of alleged embezzlement with regard to the commission of the offence on the part of petitioner cannot be determined at the moment.

10. Per plea of accused persons available in investigation record, petitioner in his statement had categorically stated that all IDs opened by him, were supported by the relevant record and the those forms were examined and audited by the concerned ADAO, Accountant and Sub-Accountant of the office. It is significant to refer that neither all 164 fake IDs/appointees were called during the investigation nor their statements were recorded to ascertain and attribute the specific roles to the accused persons individually as well as to determine the amounts illegally received/gained by them from fake appointees. Similarly, said fake appointees being the direct beneficiaries, were not included in the array of accused nor they have been cited as witnesses nor amounts of salaries received by them, have been recovered during investigation. Consequently, averments of subject reference and investigation report are silent and no specific amount of illegal gain by the petitioner in shape of fake IDs, has been mentioned nor the specific amount for causing loss to the Government exchequer has been ascertained.

11. Furthermore, neither any call up notice was issued to the petitioner nor he was afforded any opportunity to plead his case properly during the course of inquiry and investigation but he was directly apprehended on 01.03.2016 and since then he is in the custody but prosecution has failed to examine any single witness in 6 months to substantiate the allegations against him which reflects that prosecution is not serious for early commencement of the trial and is bent upon to keep the petitioner behind the bars without proper trial. Admittedly, on conclusion of investigation, reference has been filed before the concerned Accountability Court which transpired that he is no more required for further investigation. Moreover, entire case of prosecution depends upon the documentary evidence, which has already been collected during the course of investigation and same is available in safe custody of the prosecution, therefore, there is no probability of tampering with the prosecution evidence, thus further detention of petitioner will not serve any useful purpose. Per reference, there is a joint liability of embezzlement against 22 accused persons including women officials from Education Department, Mirpur Khas, consequently we are of the firm view that no distinct and specific role has been assigned to the petitioner, as neither any specific amount gained/ received by him nor specific amount for causing the loss to the Government exchequer, have been mentioned by the NAB authorities, thus allegations leveled against the petitioner requires further probe, therefore, to threshold the truth, recording of evidence of witnesses and examination of relevant documents are, essential and bail in such nature cases could not be withheld as matter of punishment.

12. Considering the facts and circumstances narrated supra petitioner has succeeded to make out his case for his enlargement of post-arrest bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. subject to furnishing solvent surety in the sum of Rs. 500,000/- and PR bond in like amount to the satisfaction of Additional Registrar of this Court.

13. The observations made supra are tentative in nature and learned trial Court shall decide the reference strictly on merits. JK/M-185/Sindh Bail granted.