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Petitioner: ABID WALI KHOSO and others VS Respondent: NATIONAL ACCOUNTABILITY BUREAU (NAB) through DG NAB, Sindh and others
Court Name: Sindh High Court Judge(s): Abdul Maalik Gaddi, Arshad Hussain Khan Title:ABID WALI KHOSO and others vs NATIONAL ACCOUNTABILITY BUREAU (NAB)
through DG NAB, Sindh and others Case No.:Constitutional Petitions Nos, D-363, 364, 446, 467, 481, 487, 488, 504, 564, 795, 1308, 1372, 1422, 1573, 3272, 2135, 2065, 2066, 2067, 2068 and 1781 of 2017, Date of Judgment:2018-03-15 Reported As: 2018 P Cr. L J 1607 Result: Order accordingly Judgment ORDER ARSHAD HUSSAIN KHAN, J.---Through this common order, we intend to dispose of above captioned petitions filed for quashment of proceedings/admission of the petitioners on pre-arrest as well as post arrest bail, arising out of one and the same National Accountability Bureau (NAB) Reference No, 07/2017 [The State v. Aijaz Ali Khaskheh and others], which is pending before the Accountability Court No,VI at Hyderabad. 2. All the petitioners have been admitted to interim pre-arrest bail by this Court except the petitioners namely Mirza Qurban Ali Baig (C.P. No,D-2065 of 2017), Aijaz Ali Khaskheli (C.P. No,D-2066 of 2017), Zulfiqar Ali Khaskheli (C.P. No,D-2067 of 2017), Aftab Ali Khaskheli (C.P. No,D-2068 of 2017), Abid Wali Khoso (C.P. No,D-1372 of 2017) and Pervez Dawood Rahpoto (C.P. No,D-1573 of 2017), who are confined in Jail. 3. The petitioners have been booked in NAB Reference No,07/2017 with the allegations of embezzlement of government funds by making illegal payments to the contractors (who are also petitioners) through fake/fictitious vouchers for bogus works. In this regard an inquiry and investigation was conducted through Investigating Officer Aslam Pervaiz Abro, who is Assistant Director, National Accountability Bureau Karachi, who after inquiry/investigation found the misappropriation/embezzlement in government funds by the petitioners by misuse of their authority, hence, submitted a Reference bearing No,07/2017 against all the petitioners with the specific allegations leveled during investigation mentioned against each petitioner as under:- Aijaz Ali Khaskheli:---He was Accountant/Town Officer in Town Committee Manjhand in the year
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2012/13 and 2013/14. He was overall in charge of the Town Committee matters. He made illegal payments to the accused contractors/proprietor of companies existing on paper only, private persons namely accused Amjad Ali Shah, Kamaluddin Lakho, Muhammad Aslam Soomro, Accountant Kashif Aziz's two real brothers Junaid Aziz and Ali Nawaz, his own real brothers Zulfikar Ali Khaskheli and Aftab Ali Khaskheli, his cousin Muhammad Khalid and Town Committee Manjhand Computer Operator Imran Ahmed. It was his responsibility to control the funds, and prevent illegal payments. He misused his authority and issued cheques for the payment to his family members and contractors/proprietors without getting the work done in connivance with accused Accountant Kashif Aziz, Disbursing Officer Qurban Mirza, Engineer/TO (I&S) Khurshed Anwar, Being Town Officer, he was overall in charge and responsible for administrative and financial matters of Town Committees. He made payments for fake vouchers and bogus works, and without even preparing the bills since he had DDO powers. Nizamuddin Shahani:---He was transition Officer in Town Committee Manjhand in 2012/13. He was overall in charge of the Town Committee matters. He made illegal payments to the accused persons namely Amjad Ali Shah, Aleemullah and issued bearer/open cheques for cash payment in favor of Computer Operator of Town Committee Manjhand Imran Ahmed. He misused his authority and issued cheques for the payment to the contractors without getting the work done and without even preparing the bills/vouchers/documents since he had DDO powers. Mirza Qurban Ali Baig:---He was Accountant and Disbursement Officer. In this capacity he was empowered to maintain budget control and make payments after observing all codal formalities. But he ignored several illegalities, misused his authority and made illegal payments to the accused contractors/private persons without even preparing the bills. He issued bearer/open cheques for cash payment in favor of Computer Operator of Town Committee Manjhand Imran Ahmed. In connivance with accused Chief Officer Orangzeb Samo, TO Nizamuddin Shahan i, Accountant Aijaz All Khaskheli, and TO (I&S) Khurshed Anwar, he made illegal payments to accused contractors and private persons namely. Amjad Ali Shah, Aleemullah, Muhammad Anwar, Kamaluddin Lakho, Muhammad Aslam Soomro and accused Aijaz Ali Khaskheli's two real brothers Zulfikar Ali Khaskheli and Aftab Ali Khaskheli. Orangzeb Samo:---He was Chief Officer in Town Committee Manjhand in the year 2012/13. He was overall in charge of the Town Committee matters. He made illegal payments to the accused contractors/private persons namely accused Amjad Ali Shah, Aleemullah, Muhammad Anwar, Kamaluddin, Muhammad Aslam Soomro, and issued bearer/open cheques for cash payment in favor of Computer Operator of Town Committee Manjhand Imran Ahmed for fake and bogus works, and without even preparing the bills since he had DDO powers. It was his responsibility to control the funds, and prevent illegal payments. He misused his authority and issued cheques for the payment to contractors and private persons without getting the work done in connivance with accused Accountant Mirza Qurban Baig and Abdul Rasheed Lund. Being Chief Officer, he was overall in charge and responsible for administrative and financial matters of Town Committees. Abdul Rasheed:---He was Accountant in Town Committee Manjhand in the year 2012/13. Being Accountant he was empowered to maintain budget control and make payments after observing all codal formalities. In connivance with accused government officials namely Orangzeb Samo he misused his authority and made illegal payments to the accused contractors/private persons namely M/s. Amjad Ali Shah & Co., M/s. Danish Bughio and M/s. Muhammad Anwer, M/s. Kamaluddin, M/s. Aslam Soomro and computer operator Imran. If he had not signed the cheques, the contractors would have not been made payment, as such loss to the government funds would not have occurred. Kashif Aziz:---He was Accountant in Town Committee Manjhand in the year 2012t13 and 2013/14. Being Accountant, he was empowered to maintain budget control and make payments after
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observing all codal formalities. He misused his authority and made illegal payments to contractors without getting the works done and preparing fake and bogus documents/vouchers/bills. He prepared fake documents in connivance with accused TO Aijaz Ali Khaskheli, TO Abid Wali Khoso, Engineer Khurshed Anwar and Recovery Clerk Malook Shah. He was co-signatory on cheque payments to the accused private persons/fake contractors namely Amjad Ali Shah, Danish Bughio, his brothers namely Junaid Aziz and Ali Nawaz, accused, TO Aijaz Khaskheli's two real brothers namely Zulfikar Ali Khaskheli and Aftab Ali Khaskheli and his cousin namely Muhammad Khalid. In connivance with him, his brother namely Ali Nawaz forged the signature similar to that of him for bank account and gave him the cheque book to draw the town committee-transferred funds from his bank. If he had not signed the cheques, the contractors would have not been made payment, as such loss to the government funds would not have occurred. Khurshed Anwar:---He was TO (I&S)/Engineer in Town Committee Manjhand in 2012/13. Being Engineer, he was responsible for executing all civil, mechanical and development works properly. He has prepared and processed the fake vouchers of bogus works in the name of contractors/ private persons namely accused Royal Construction, Unique Enterprises, M/s. Zulfikar & Co, Mehran Traders, M/s. Muhammad Khalid & Co. in connivance with accused officials Aijaz Ali Khaskheli, Malook Shah, Kashif Aziz. If he had not prepared the fake vouchers of bogus works, loss to the government funds could be prevented. Abid Wali:---He was Town Officer in Town Committee Manjhand. He was overall in charge of the Town Committee matters. He made illegal payments to the accused contractors. It was basically his responsibility to control the funds, and prevent illegal payments. In connivance with accused government officials namely Kashif Aziz, Abdul Salam Malik, Muzaffar Hussain Katpar, Ghulam Hussain Abbasi, Malook Shah, Pervaiz Dawood Rahpoto, he misused his authority and issued cheques for the payment to the contractors without getting the work done. Being Town Officer, he was responsible for administrative and financial matters of Town Committee. He made illegal payments for fake vouchers and bogus works, and without even preparing the bills/vouchers since he retained DDO powers. Abdul Salm Malik:---He was Accountant in Town Committee Manjhand. Being Accountant he was empowered to maintain budget control and make payments after observing all codal formalities. He prepared fake vouchers/documents/bills in connivance with accused government officials namely Ghulam Hussain Abbasi, Malook Shah, Abid Wali, and Muzaffar Katpar. He misused his authority and made illegal payments to the accused contractors/private persons namely Amjad Ali Shah, Danish Bughio and M/s. Sarfraz. If he had not signed the cheques, the contractors would have not been made payment, as such loss to the government funds would not have occurred. Ghulam Hussain Abbasi:---He was Engineer in Town Committee Manjhand in 2014/15 and 2015/16. Being Engineer, he was responsible for executing all civil, mechanical and development works properly. He has prepared and processed the fake vouchers of bogus works in the name of contractors/private persons namely accused M/s. Syed Amjad Ali Shah, M/s. Danish Bughio, M/s. Sarfraz Enterprises, M/s. S.A. Khan Builders and M/s. Ahsan & Co. in connivance with accused officials Abid Wali Khoso, Abdul Salam Malik, Malook Shah, Pervaiz Dawood Rahpoto, Mumtaz Hussain Korkani, and Muzaffar Hussain Katpar. If he had not prepared the fake vouchers of bogus works, loss to the government funds could be prevented. Mumtaz Ali Korkhani:---He was Town Officer in Town Committee Manjhand in 2014/15 and 2015/16. He made illegal payments to the accused contractors. He was responsible to control the funds, and prevent illegal payments. In connivance with government officials namely Malook Shah, Ghulam Hussain Abbasi, Muzaffar Hussain Katpar and Pervaiz Dawood Rahpoto, he misused his authority and issued cheques for illegal payment to the private persons and fake contractors namely M/s. Ahsan & Co', M/s. S.A Khan Builders, M/s. Syed Amjad Shah & Co., M/s. Danish Bughio,
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M/s. Sarfraz & Co, and to accused Administrator Muzaffar Hussain Katpar, without getting the work done. He made payments on illegal payments for fake vouchers and bogus works, and without even preparing the bills since he retained DDO powers. Pervaiz Dawood Rahpoto:---He was Accountant in Town Committee Manjhand in the year 2014/15 and 2015/16. Being Accountant he was empowered to maintain budget control and make payments after observing all codal formalities. He prepared fake vouchers/documents/bills in connivance with accused government officials namely Ghulam Hussain Abbasi, Malook Shah, Mumtaz Ali Korkani and Muzaffar Katpar, he misused his authority and made illegal payments to the accused contractors/private persons namely Amjad Ali Shah, Danish Bughio and M/s. Sarfraz Enterprises, M/s Ahsan & Co. and M/s. S.A Khan Builders. If he had not signed the cheques, the contractors/private persons would have not been made payment, as such loss to the government funds would not have occurred. Syed Malook Shah:---The accused Malook Shah is Recovery Clerk in town committee Manjhand. He was instrumental in preparing fake vouchers by raising fake requisition for supply of material. He played his role in preparation of fake vouchers in the name of private persons and fake contractors namely M/s. Syed Amjad Ali Shah, M/s. Danish Bughio, M/s. Royal Construction, M/s. Unique Enterprises, M/s. Sarfraz Enterprises, M/s. S.A. Khan Builders and M/s. Ahsan & Co. In addition to this, he received an amount of Rs, 846,000/- in cash from account of accused contractor namely M/s. Syed Amjad Shah, and an amount of Rs,2,495,000/- has been transferred into his account # 0403-159537-1000 in Sindh Bank Kotri from accounts of accused contractors namely M/s. S.A Khan Builders and M/s. Ahsan & Co. Sindh Bank Gulshan-e-Maymar accounts. Imran Ahmed:---The accused Imran Ahmed is computer operator in Town Committee Manjhand. He acted as front man of accused town committee Officials. Once funds were transferred into the accounts of accused contractors, he used to visit the banks along with open/bearer cheques and collected the cash from accused contractors' accounts for onwards disbursement among the officials. The evidences showed that he received in cash amount of Rs, 2,875,800.00 from accounts of accused Amjad Ali Shah, Rs, 528,000.00 from accused Aleemullah and Rs,1,335,000/- from accused Muhammad Anwar. Moreover, he also collected in cash Rs, 2,458,619/-from Town Committee Manjhand account in Sindh Bank, for which the open/bear cheques were issued in his favor by Town Committee Officials. Amjad Ali Shah:---Accused Amjad Ali Shah posed as contractor and is proprietor of company namely M/s. Syed Amjad Ali Shah and Co. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,44,825,824/- into account No, 04030129651000 Sindh Bank Kotri, causing loss to the national exchequer. Aleemullah:---Accused Aleemullah is proprietor of company namely M/s. Ali & Co. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,8,623,783 into his account No, 04030132321000 Sindh Bank Kotri, causing loss to the national exchequer. Muhammad Anwar Khatian:---Accused Muhammad Anwar Khatian is proprietor of M/s. Muhammad Anwar & Co. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,15,343,427/- into his A/c No, 04030141891000 Sindh Bank Sindh Bank Kotri, causing loss to the national exchequer. Danish Bughio:---Accused Danish Bughio is proprietor of M/s. Danish Bughio. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,9,153,091/- into his A/c No, 04030792981000 Sindh Bank Kotri, causing loss to the national exchequer.
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Ali Nawaz:---Accused Ali Nawaz is proprietor of M/s. Royal Construction. He is also real brother of accused accountant Kashif Aziz. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,4,161,850/- into his account A/c # 456140, in JS Bank Qasimabad branch causing loss to the national exchequer. He also forged the signature similar to that of his brother accountant Kashif Aziz and gave him the cheque book for onward withdrawal of Town Committee-transferred funds from his account. Junaid Aziz:---Accused Junaid Aziz is proprietor of M/s. Unique Enterprises. He is also real brother of accused accountant Kashif Aziz. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,3,758,888/- into his A/c # 455835, in JS Bank Qasimabad branch causing loss to the national exchequer. Zulfiqar Ali Khaskheli:---The accused Zulfikar Ali Khaskheli is proprietor of M/s. Zulfikar & Co. He is also real brother of accused Town Officer Aijaz Ali Khaskheli. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,8,302,456/- into his A/c # 0138006-0006213 in Faysal Bank Saddar Hyderabad branch causing loss to the national exchequer. Aftab Ali Khaskheli:---The accused Aftab Ali Khaskheli is proprietor of M/s. Mehran Traders. He is also real brother of accused Town Officer Aijaz Ali Khaskheli. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,6,330,844/- into his A/c # 0641625201001378 MCB Liaqat Road Kotri, causing loss to the national exchequer. Muhammad Khalid:---The accused Muhammad Khalid is proprietor of M/s. Khalid & Co. He is also real cousin of accused Town Officer Aijaz Ali Khaskheli. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs, 5,814,840/- into his A/c # 0138-007-000000199 in Faysal Bank Saddar Hyderabad branch, causing loss to the national exchequer. Sarfraz Ali Soomro:---The accused Sarfraz Ali Soomro is proprietor of M/s. Sarfraz Enterprises. He has received illegal payments from Town Committee Manjhand without carrying out any work. In connivance with government officials, he received an amount of Rs,12,280,658/- into his A/c No,0010031528780011 in Allied Bank. Nasim Nagar Branch Hyderabad, causing loss to the national exchequer. 4. Learned counsel for the petitioners during the course of their arguments while reiterating the contents of petitions, have argued that the petitioners are innocent, respectable and have been falsely implicated in the reference and the charges against the petitioners are motivated with mala fide intention of the NAB authorities; that the petitioners who are officials of Town Committee Manjhand have performed their lawful duties and acted in accordance with law whereas, the petitioners who are contractors have properly performed on their part, which was done in accordance with law and in this respect, no rule has been violated as alleged; that in the instant case, an authorization for inquiry was given to Mr. Aslam Pervaiz Abro, Assistar, Director NAB on 27.11.2015 for inquiry, whereas investigation was entrusted to him on 18.05.2016 and total amount is shown as Rs,232,427,606.00. During course of arguments, the learned counsel for the petitioners while raising objection regarding investigation conducted by the NAB have submitted that the 1.0 has failed to establish the allegation of fictitious vouchers for bogus works; the site inspection of all those alleged bogus works was not made under proper manners and fulfillment of legal formalities; and further the I.0 has also failed to establish that entire record like as PC/complete file in connection with each and every bill and issuance of cheque pertains to the years 2012-2013 & 2013-2014 was recovered/collected from the officer of TMA or any individual custody. In this regard,
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learned counsel have also pointed out that two site inspections were allegedly conducted by Investigating Officer on 10.04.2016 and 11.11.2016 and such technical inspection report was prepared hypothetically as the said report reflects that no memo of site inspection was prepared at the site of work in question; that the report does not reflect the signatures of all incumbents of Town Committee Manjhand and relevant contractors; that according to Para A of the report, the NAB team and other officials visited the site on 10.04.2016 but subsequently in the report it has been mentioned that "Detail of 1st Visit made on 07.04.2016 to 12.04.2016", therefore, the period of alleged site inspection is self-contradictory and hypothetical. Further, learned counsel pointed out that similarly as per para-B of the report, the NAB team visited the site on 11.11.2016 but subsequently in the report it has been mentioned that "Detail of 2nd visit made on 07.11.2016 to 12.11.2016", hence, this period of alleged site inspection is also self-contradictory to the version mentioned above in which the date has been specifically mentioned only 11.11.2016 for the purpose of site inspection, meaning thereby the alleged inspection report is self-contradictory and hypothetical. It is further pointed out that the 1.0 and his team have visited only nine (09) works in question out of more than 100 works; that the cost of such nine works is not more than nine lac, therefore, 1.0 failed to establish the allegation of embezzlement of government amount of Rs,232,427,606.00. Learned counsel have contended that entire investigation only depends upon the Technical Inspection Report, which is baseless, self-contradictory, without justification and has been carried out improperly, and this is sufficient ground for the case to be of further inquiry. All the subject cheques were issued by the petitioners after completion of codal formalities and as per law after pre-audit bill by the Assistant Director Local Fund Sindh District Jamshoro and the Assistant Director Local Fund Sindh District Jamshoro, but they have not been made as an accused by the Investigation Officer in the present matter therefore, the case of petitioners falls within the ambit of mala fide and the case requires further inquiry. 5. Further, during course of arguments, learned counsel have also raised questions on the investigation conducted by the National Accountability Bureau that in the alleged embezzlement, there are three stake holders ought to have been examined, which are (i) Finance Department Government of Sindh; (ii) Local Funds Audit Department Jamshoro/Dadu; and (iii) Town Committee officers/officials and contractors of Town Committee Manjhand. According to learned counsel, these three stake holders are interlinked with each other and nothing could be misappropriated or embezzled without joint consent of each other; that the Finance Department provides funds to every Town Committee of Province of Sindh and is duty bound to make check over the all Town Committees of Province of Sindh whereas, the Local Fund Audit Department for every District is under obligation to make pre and post audit of every development and maintenance work in question as well as requisite purchase. They further argued that without examining all the stake holders by fixing liability of allegedly embezzled amount is unjustified and contrary to law. In this regard, learned counsel have referred to a letter dated 20.02.2017 addressed to Assistant Director Investigation NAB Sindh Karachi written by Mr. Muhammad Buksh Pathan, Assistant Director Local Funds Audit, Jamshoro/Dadu and contended that according to the rules and procedure, the bills of the Local Councils are produced to the Local Fund Audit Department for day to day audit by hand and same are returned back after scrutiny and pre-audit. Per learned counsel for the petitioners, at the first instance the bills were pre-audited by Assistant Director L.F.A Sindh District Jamshoro and then the cheques were issued on the basis of such pre-audited contingency/quotation bills. They have also contended that there is no certainty as to whether the trial would be concluded within a shortest period as sixteen prosecution witnesses are to be examined and the case is completely based on documents, hence, the petitioners are also entitled for their confirmation of bail and grant of post arrest bail on this score also. 6. Messrs Riazat Ali Sahar, Ishrat Ali Lohar and Nasrullah Korai advocates have added their
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contentions that on 02.02.2016, the NAB authorities appointed one Investigation Officer namely Aslam Parvaiz Abro Assistant Director (Investigation) regarding the visit the office of TMA Manjhand for the purpose inquiry; that the office of TMA Manjhand was closed after the raid of Inquiry Officer Aslam Parvaiz Abro and he had also taken away whole record of concerned office, such fact is corroborated from news published in Daily `Ibrat' and leejal' newspapers. They have further contended that the office of the Director General Audit, (Local Councils), Sindh, Karachi issued report of Audit year 2016 to 2017 and Financial Year 2015 to 2016, in which it was stated that the Administrator, Town Committee, Manjhand, District Jamshoro, during 2015-2016, earned revenue and incurred expenditure under various heads of accounts of Salary, Non-Salary and Development, but failed to provide access of record to audit because the same was taken away by the NAB up to 19.04.2016, in violation of the rules. They further pointed out that the Investigating Officer did not prepare any mashirnama of recovery/seizure memo as well as mashirnama of place of incident; that on 23.08.2016, one Circle Officer namely All Akbar Brohi under the supervision of concerned Civil Judge and Judicial Magistrate Kotri raided at the office of TMA Manjhand and checked the whole record except record room which was locked due to…
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