2023 P Cr (PLP)

Through this Constitutional Petition under Article 199 of the Constitution Islamic Republic of Pakistan, 1973 petitioner seeks post-arrest bail in ACR No. 17 of 2020 titled "Muhammad Sarwar v. The State" on the following grounds of arrest:- "a. That the accused being senior auditor without allocation/ assignment of Cost Center LO 4250 (Directorate of Agriculture, Economics and Marketing) by AG office passed/authorized fake bills of Directorate of Agriculture (Economics and Marketing), Lahore

Agriculture Department, Punjab without making pre-audit checks. b. That the accused with mala fide intention did not ensure that the claims submitted to AG office by Directorate of Agriculture (Economics and Marketing), Lahore are duty approved and complete by the concerned authority. c. That the accused using SAP user ID of Muhammad Sarwar, Senior Auditor forwarded fake bills to Assistant Accounts Officer (AAO) for further processing. d. That the accused deliberately did not ascertain validity of supporting documents accompany the claims/bills. He deliberately passed such bills in the name of vendors which can only be passed in the name of DDO. e. That the accused from 2015-2017 through fake bills and in active connivance of other accused persons caused huge loss amounting to Rs. 267 million to Government Exchequer."

2. Brief facts giving rise to the filing of this bail petition are that respondent/NAB conducted investigation No. 1(61)HQ/961/IW -I/NAB-L/07, authorized against officers/officials of Accountant General Office, Lahore and other with regard to payment and processing of bogus bills during July 2015 to October 2017, in Cost Centers No. L.O.-4250 (Directorate of Agriculture (Economic and Marketing Lahore) and L.O.-4913 (Director Punjab Institute of Agriculture Marketing (PIAM). On 21.02.2020 interim investigation was concluded and interim reference No. 17 of 2020 dated 22.04.0020 was filed and charge was framed on 25.09.2020. The petitioner seeks his release primarily on the new grounds accrued to him after insertion of amendment dated 22.06.2022 and 12.08.2022 in National Accountability Ordinance, 1997.

3. Learned counsel for the petitioner submits that petitioner was arrested on 22.01.2021 and has spent more than two years behind the bars. The learned trial court has erred by misreading and non-reading of material available on record and misunderstood the law as according to the amendment of 2022 the period for conclusion of trial under section 16(a) of NAO, 1999 has been extended from 30 days to one year and since the trial has not been concluded within the requisite period, the petitioner is entitled to grant of post arrest bail on this ground alone and places reliance upon order dated 17.11.2022 passed by Rawalpindi Bench of this Court in case titled "Muhammad Alam Khilji and others v. Judge Accountability Court and other" while deciding Writ Petition No. 3197 of 2022 and prays for the relief.

4. In the report and parawise comments submitted by NAB it was stated that upon the complaint of Accountant General, Punjab the petitioner while posted as Senior Auditor AG Office at Payroll-13 was allocated/assigned Cost Center No. LO 4250 (Directorate of Agriculture, Economics and marketing) for pre-auditing and certification process during the period when fraudulent payments were made. The petitioner along with other was dismissed from service after thorough probe into the allegation of embezzlement of funds and misuse of authority. He in connivance with co-accused persons caused huge loss to the government exchequer and, therefore, prays for dismissal.

5. Arguments heard. File perused.

6. After hearing the learned counsel for the petitioner, learned Special Prosecutor for NAB and perusing the file, it is straightway observed that the petitioner was arrested on 22.01.2021 and during this period of more than 2 years out of 68 PWs only 9 PWs could record their statements and according to the NAB the petitioner did not play any significant role in the delay in conclusion of the trial in the offence under section 9(a)(ii)(iii)(iv)(vi) and (xii) read with section 10 of NAO, 1999 containing maximum punishment of 14 years' R.I. and fine. Meanwhile, an amendment in section 5(o) was made to the following effect:- Section 5(o) of NAO, 1999 "Offence" means the offences of corruption and corrupt practices and other offences as defined in this Ordinance (of the value not less than five hundred million rupees and includes the offences specifies in the schedule to this Ordinance."

7. The substantial change brought in is that if the allegation of misappropriation of misusing the public money does not exceed 500 Million rupees or the number of persons allowed is less than 100 the NAB will not have any jurisdiction and, therefore, the Accountability Court created under section 5(g) of NAO, 1999 shall take its hand off to further proceed in the reference and return it at once to the NAB. It is not denied that the report under section 173, Cr.P.C. was not sent to any court of competent jurisdiction to take the cognizance. In this background, the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to enforce his individual fundamental right under Article 9 (Security of a person) and Article 10 (Safeguard as to arrest and detention).

8. In the report and parawise comments submitted by the NAB on 22.12.2022 it is not denied that the petitioner is facing the allegation of embezzlement of the government funds to the tune of Rs. 267.179 Million which is much less than Rs. 500 Million; the maximum figure mentioned in the said amendment.

9. The petitioner, therefore, filed an application under section 497, Cr.P.C. before the learned Judge Accountability Court No. IX Lahore which was dismissed for lack of jurisdiction on 29.11.2022. Order is reproduced as under:- "Perusal of reference No. 17/2020 shows that the allegation against the accused/petitioner along with co-accused is that of embezzlement of Rs. 267.179 (Millions), which is less than Rs. 500 (M). In this situation, prima facie, offence committed by accused/petitioner does not fall within the jurisdiction of NAB Act No. XVI of 2022. This court has only to decide the cases where offences, fall within the jurisdiction of this court. This court has no jurisdiction and bail petition is hereby dismissed, due to lack of jurisdiction. File be consigned to record room after due completion."

10. The file also reflects that the petitioner filed an earlier Writ Petition No. 80904 of 2021 which was dismissed on 24.03,2022 before the said amendment thus it provides fresh ground in view of Nazir Ahmed and another v. The State and others (PLD 2014 Supreme Court 241).

11. It is shocking for us to observe that the petitioner is not aware as under what penal law he is under detention at the moment. His custody is being regulated by the Accountability Court on regular basis but that too due to the uncertainty/ambiguity created by the amending law. Here we will deliberately restrain to discuss the wisdom behind the legislative intent, hoping to discuss it on some other appropriate case. At the moment, we have to interpret the law as it exists today. That we shall do to protect the fundamental right of the petitioner. Obviously, we cannot and must not give any clean chit to any accused stifling the trial but can definitely question the ground of detention under the present law. In the civilized countries, the detention without trials has been regarded as the least possible inhumane tool used to restrict people, which has long been outdated.

12. Besides, we have noted that detention of the petitioner can be easily termed as unconscionable delay as understood by the apex Court in Shahid Shafiq Alam Faridi and another v. Federation of Pakistan and others (2021 SCMR 1210). Even otherwise, this Court in Muhammad Subtain Khan v. National Accountability Bureau through Chairman NAB and 3 others (PLD 2020 Lahore 191) has already discussed the vast powers of this Court under its Constitutional jurisdiction for the grant of post-arrest bail.

13. For what has been discussed above, this writ petition is allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (One Lac Only) with two sureties each in the like amount to the satisfaction of the learned trial court. MH/M-59/L Bail allowed.