2023 PLP 400 (MLD)

AMJAD ALI SAHITO, J.

By this common order, we intend to dispose of above-captioned three petitions, filed by the petitioners/ accused Muhammad Munawar Arain, Imtiaz Magsi and Ghulam Sarwar Bhutto seeking post-arrest bail in Reference No. 06 of 2021 ("the Reference").

2. The details and particulars of the Reference are already available in the petitions, same could be gathered from the reference attached with the petitions, hence needs not to reproduce the same hereunder.

3. Learned counsel for the petitioners Imtiaz Magsi and Ghulam Sarwar Bhutto have contended that the petitioners are innocent and have falsely been implicated by the NAB authorities and they have nothing to do with the alleged misappropriation of wheat stock of Food Department; that the assignment of the petitioners does not fulfil the requirement of section 9(a)(iv) of National Accountability Ordinance, 1999 to justify the criminal prosecution; that petitioners have fully cooperated with the NAB authorities during the investigation and the NAB has already in possession of the relevant record, hence unnecessary arrest shows mala fide and high handedness of the NAB authorities, therefore they pray for the concession of bail to the petitioners.

4. Learned counsel for petitioner Muhammad Munawar Arain has asserted that the allegation against said petitioner is that being District Food Controller, he failed to check wheat stock once a month is in fact misconceived, as he is the person who made complainant to Circle Officer ACE, Sanghar for misappropriation of wheat crop years 2016-17 and 2017-18 and on his complaints two FIRs being Crime Nos. 01 and 02 of 2019, under sections 409, 34, P.P.C. read with section 5(2), ACT-II of 1947, were lodged at police station ACE, Sanghar. Hence, the said petitioner is not involved in alleged offence. Learned Counsel has also placed on record corresponding letters and copies of said FIRs, copies thereof have been supplied to learned S.P.P., NAB.

5. On the other hand, learned Special Prosecutor, NAB has vehemently opposed the grant of bail to the petitioners.

6. Heard the learned counsel for the parties and perused the material available on record.

7. The relevant facts set out in the Reference are based upon a source report wherein the NAB, Sukkur was authorized to conduct an inquiry against misappropriation of Govt. wheat stock by officials of Food Department, Sanghar. On the collection of sufficient incriminating material, investigation was authorized vide letter No.740087/IW-II/ CO-A/NAB Sukkur/2020/1047, dated 20.02.2020. As per investigation, petitioners Imtiaz Magsi and Ghulam Sarwar in connivance with petitioner Muhammad Munawar Arain made bogus dispatches of ,wheat stock from District Sanghar to Karachi, causing loss to the exchequer. It appears that the petitioner Imtiaz Magsi, Assistant Food Controller, was posted as the Incharge PRC, Sarhari and he was responsible for the safe custody of stock. However, on physical checking of the stock in presence of the Judicial Magistrate, it surfaced that 2233x Jute bags and 7706x PP bags of wheat were shot/missing for the crop year 2017/18. Further, the accused being Centre In-charge Wheat Procurement Center (WPC), Sarhari for the crop year 2016/17, submitted false/bogus dispatch reports. When reconciliation was carried out by DFC, Malir, it transpired that said petitioner misappropriated 15086x Jute Bags and 6450x PP Bags for the crop year 2016/17 and 9139x Jute bags from the crop year 2017/18, hence he caused loss to national exchequer amounting to Rs. 13,61,95,805/-, which is his liability.

9. It further appears that the petitioner Ghulam Sarwar Bhutto was posted as the In-charge, WPCs Shafiabad and Chak-22 for the crop year 2017/18 and he was responsible for procurement and safe custody of the wheat stock. As per the official record, the balance of 648x jute bags and 3370x PP bags were available at Shafiabad WPC, whereas 1165x PP bags were available at Chak-22 WPC. However, on physical checking of the stock in presence of the Judicial Magistrate, it was transpired that both the said Centre availability of stock was "Nil". Further, the said petitioner being Incharge of WPC, Suleman Dahiri for the crop year 2016/17 submitted false/bogus dispatch reports, however when reconciliation was carried out by DFC, it transpired that 223xPP bags were misappropriated by showing bogus dispatch, hence he caused loss to national exchequer amounting to Rs.12,527,200/- which is his liability.

10. No mala fide or ill will has been pointed out by the learned counsel for the petitioners Imtiaz Magsi and Ghulam Sarwar Bhutto against the investigating officer or NAB authorities. We are of the view that sufficient material/evidence is available on the record to connect the said two petitioners with alleged misappropriation of Government wheat and causing loss of millions to the Government exchequer. We are not impressed with the arguments advanced by the learned counsel for the said petitioners; resultantly, C. Ps. Nos. D-893 and D-1120 of 2021 filed on behalf of the petitioners Imtiaz Magsi and Ghulam Sarwar Bhutto are dismissed.

11. So far the case of petitioner Muhammad Munawar Arain is concerned, it appears that vide Notification, dated 5th April 2018, he remained posted as Additional District Food Controller, Sanghar till 16-05-2019 and then he was again posted as ADFC, Sanghar on 24-10-2019. He issued directives to WPCs for reconciliation of wheat stocks of crop years 2016/17 and 2017/18 and submission of record thereto. During such process, he found massive irregularities, corrupt practices and shortage in wheat stock at several WPCs, within his jurisdiction and control. He also constituted a four-member committee for physical counting of the wheat stocks stored at PRC, Sarhari to find out the quantity of the wheat that was illegally sold out by the incharge. After conducting an inquiry, the report was submitted to him showing missing of thousands of wheat bags. On detection of such misappropriation, accused AFC Imtiaz Magsi was placed under suspension and on the complaint of said petitioner FIRs being Crime Nos. 01 and 02 of 2019, under sections 409, 34, P.P.C. read with section 5(2), Act-II of 1947 was lodged at ACE, Sanghar.

12. Learned counsel for the petitioner Muhammad Munawar Arain has invited our attention to the letters, which are available in the Court file at page Nos. 59 to 145, which show that the said petitioner was continuously in contact with Deputy Director Food, Shaheed Benazirabad Region and informed him about the misappropriation of the wheat. In the aforesaid FIRs, he disclosed that the accused persons had caused loss to the Government exchequer worth Rs. 111,569,48.10. During pendency of the cases under said FIRs before Anti-Corruption Court, the NAB authorities conducted the investigation and implicated the said petitioner as an accused in the Reference, ignoring the fact that he neither was In-charge of the Food Centre or Go-down nor he misappropriated the wheat bags or there was/is any allegation against him that he submitted false and bogus dispatch reports. As per NAB's case, the said petitioner did not receive any financial benefit. Further, no evidence has been brought on the record which could suggest any mens rea or criminal intention on his part; hence, the case of the said petitioner requires further inquiry. The Reference has already been filed, hence, he is no more required by NAB authority for further inquiry and thus a case for a grant of post-arrest bail to the said petitioner has been made-out.

13. For the foregoing facts and reasons, C.P. No. D-753/2021 is allowed. Petitioner Muhammad Munawar Arain is admitted to post-arrest bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lac Only) and P.R bond in the like amount to the satisfaction of learned trial Court.

14. Needless to mention that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of the petitioners on merits. The office is directed to place a signed copy of this Order in aforementioned captioned petitions. MH/M-143/Sindh Order accordingly.