2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned petition, petitioner Muhammad Waqas has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and prayed for his enlargement on post-arrest bail till pendency of Reference No.20/2016.

2. Necessary facts spelt out from instant petition are that complainant initiated investigation on receipt of a complaint against officers/officials of Forest Department, Government of Sindh and others regarding misappropriation of funds allocated for development scheme titled as "Habitat Restoration and Promotion of Ecotourism Through Development of Wildlife Safari in Booharki Forest, District Badin". Government initially approved budget of Rs.155 million, which was subsequently revised to Rs.250 million and such expenditure was incurred for two components of the scheme, nevertheless the released funds were misappropriated and embezzled by the accused persons in connivance with each other. It is further averred that 24 civil works were approved, out of which 22 works were initially decided to be advertised which were subsequently extended into 30, in clear violation of SPPRA Rules, 2010, and awarded to the favorite contractors through fake and managed bidding process by the Tender Committee Members. Notice for inviting tenders was published in local and national newspapers on 28.01.2012, and for 30 civil works, 12 firms participated in the bidding process out of which 4 were registered in the name of Nasrullah Anwar (accused No.10) son of Muhammad Anwar Baloch (accused No.1) and one firm was owned by Khadim Hussain (accused No.11) who aided the accused No.10 in the bidding process. 19 contracts were awarded to accused Nos.10 and 11 in the names of their firms. Per investigation report, Rs.66,82,346/- was embezzled by Irshad Ali Jessar (accused No.7), Muhammad Waqas (accused No.8). Muhammad Suhail Shaikh (accused No.9) and Arsalan Shaikh (accused No.12) in connivance with each other, as Rs.15,00,000/- vide cheques No.124505 and 124506, dated 02.06.2014, were transferred from scheme funds to the bank account of accused No.12 in Meezan Bank, Latifabad No.7, Hyderabad by accused No.7, fraudulently showing it as expenditures against civil works by fabricating forged and fake vouchers. Further amounts of Rs.16,00,000/- and Rs.12,00,000/- were transferred through cheques No.527783 and 527795 by accused No.8, out of which later on, Rs.10,00,000/- were deposited vide cheque No.1380522 in the official RFO account in National Bank of Pakistan, Tando Muhammad Khan, while the remaining amount of Rs.18,00,000/- was withdrawn and misappropriated by all the three accused Nos.8, 9 and 12 in aid, abetment and active connivance with each other. Record further reveals that total alleged expenditures incurred for Revenue Component for New Plantation, Rehabilitation of existing Vegetation, Reclamation of Forest land, Silt Clearance and Maintenance of the scheme which came to the tune of Rs. 53,690,810/-, out of which, as per calculation of Horticulturist of KMC Parks an amount of Rs.22,861,482/- has been embezzled.

3. Learned counsel for petitioner, inter alia, contended that petitioner is innocent and has been falsely arrested by respondent No.4. Investigating Officer for the allegations of misappropriation of Rs.27 million which were transferred to the R.F.O. Boharki Forest account; that according to cash balance, said amount was sent to the budget and accounts section of Chief Conservator Office, which was not utilized and retained in R.F.O. account. Learned counsel further emphasized that there are allegations for receiving of salaries by the petitioner by illegal means from Government exchequer against his fake appointment as R.F.O., while same allegations have been leveled against co-accused for receiving same salaries: that petitioner did not commit any misappropriation in the funds of the scheme; that petitioner cooperated with Investigating Officer and furnished all true and correct information duly supported with the relevant record; that NAB Authority is not competent to investigate the case of impersonation and such offence if any, comes within the jurisdiction of Provincial Anti-Corruption Department.

4. While refuting the above submissions, learned Special Prosecutor NAB contended that petitioner had received salaries against his fake appointment as RFO in Forest Department and has caused loss to Government exchequer, hence he does not deserve for concession of bail.

5. Heard learned counsel for the parties and perused the material available on record which emanates that NAB has filed reference No.20 of 2016 against 13 accused persons including the petitioner regarding misappropriation and embezzlement of funds worth Rs.53,690,810/-. Per allegations petitioner's brother co-accused Muhammad Suhail was selected as Range Forest Officer (RFO) in the Forest Department, Government of Sindh, but he instead of joining said office, had illegally got employed the petitioner in his place by impersonation in Forest Department and petitioner has received salaries to the tune of Rs.12,46,951/- against his fake appointment as RFO. Conversely. petitioner's brother namely Muhammad Suhail was appointed as Data Processing Assistant (BPS-16) in Pakistan Bureau of Statistics vide notification dated 20.11.2012 and was arrested on same day from his said office on the allegations that he has been receiving two salaries from Government exchequer i.e. as Range Forest Officer, Forest Department, Government of Sindh and as Data Processing Assistant, Pakistan Bureau of Statistic, Government of Pakistan. On the query made by us regarding the verification of signatures of accused persons through hand writing expert to fix responsibility of receiving the salaries, learned Special Prosecutor NAB could not place any such record to substantiate such allegations. Admittedly, there is no material available with prosecution that which of the accused person had committed the alleged offence of receiving salaries. Similarly, no documentary proof has been place before us that petitioner had committed any misappropriation and embezzlement in the funds allocated for the subject scheme of Forest Department nor he is beneficiary of the alleged embezzlement. Consequently, allegations leveled for receiving of salaries against the post of RFO by the petitioner as well as his brother are self-contradictory and such controversy can only be resolved at the trial through recording of evidence of PWs.

6. Nevertheless, in the prevailing circumstances, at the most allegations for the commission of the offence against the petitioner fall within the ambit of cheating by personation under section 416, P.P.C. which narrates that a person is said to cheat by personation if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or presenting that he or any other person is a person other than he or such other person really is, and such offence is punishable under section 419, P.P.C. which describes that whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to seven years or with fine, or with both. It is well settled that when the alleged offence is punishable with imprisonment or fine or both, Court while examining the question of bail, should consider the minimum aspect of the sentence i.e. fine provided for the alleged offence in the schedule, as if on the conclusion of the trial, learned trial Court convicts the accused with the sentence of fine only then the period of detention of accused for the said offence, could not be compensated. Consequently, the allegations of impersonation require further inquiry for which recording of evidence of witnesses and examination of relevant record is essential.

7. Moreover, petitioner was arrested on 22.02.2016 and he extended his full cooperation with the Investigating Officer. After completion of the investigations, reference has been filed before the competent Court, hence he is no more required for further investigation and all the required record has already been collected which is in custody of the prosecution, hence there is no apprehension of tampering with the prosecution evidence. Even prosecution has failed to place any criminal history of the petitioner on record, and undeniably, he was never involved in similar nature case nor was previously convicted, therefore, his further detention will not serve any useful purpose. Furthermore, co-accused Riaz Ahmed Waggan, Conservator of Forest Department in C.P No.D- 450/2016, and Saeed Akhtar Baloch, Conservator of Wildlife Department in C.P. No.D-477/2016, vide order dated 19.04.2016, have been granted post-arrest bail by this Court.

8. While considering the preamble of the NAB Ordinance, 1999, we are of the view that the alleged offence does not fall within the domain of NAB Authorities to take cognizance against the petitioner for the alleged offence. On other hand, a reference No.AC/SK/-2016, vide letter dated 28.05.2016, has already been floated by the Administrative Judge Accountability Courts, Sindh Karachi, to the Director General, National Accountability Bureau, Karachi for transferring of references from the Accountability Courts and reference No.20/2016 is mentioned at serial No.17.

9. As the sequel of the above discussion, we are of the considered view that petitioner has succeeded to make out his case for enlargement on post-arrest bail on the ground of further inquiry as well as under the rule of consistency. Consequently, petitioner is admitted to post-arrest bail on furnishing solvent surety in the sum of Rs. 5,00,000/- (Rupees Five Lacs only) and P.R. bond in the like amount to the satisfaction of Additional Registrar of this Court. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. These are the detailed reasons for the short order dated 01.09.2016, whereby petitioner was admitted to bail by us. JK/M-15/Sindh Bail granted.