2018 Y L R 2479
[Balochistan]
Before Nazeer Ahmed Langove and Muhammad Ejaz Swati, JJ
SAJJID AHMED and others ---Petitioners
Versus
NATIONAL ACCOUNTABILITY BUREAU, through Director General and another ---
Respondents
C.Ps. Nos. 13 and 69 of 2017, 1203, 1210, 1212, 1213 and 1214 of 2016, decided on 29th
March, 2017.
National Accountability Ordinance (XVIII of 1999) ---
----S. 9(a) & (b) ---Constitution of Pakistan, Art. 199---Constitutional petition ---Pre -arrest bail,
grant of ---Reference, filing of ---Case of further inquiry ---Principle of consistency ---
Applicability ---Petitioners were accused facing trial under National Accountability Ordinance,
1999, who sought pre -arrest bail --- Validity --- Allegation against petitioners were that had they
appointed 7 bog us teachers in District Quetta and in violation of procedure, activated salaries of
alleged bogus teachers ---One of the petitioners was retired on in March 2011 and during the
period of alleged appointment he was out of country ---Question related to anothe r petitioner as to
whether he at the relevant time was ex -Deputy District Officer Education, had DDO's power to
initiate salaries of bogus teachers or as to whether official / officer of the office of Accountant General had acted in violation of any law, r ule or regulation and bringing their case under
National Accountability Ordinance, 1999, were the exceptional circumstances, and the same were yet to be decided by Trial Court ---Reference in question had already been submitted before
Trial Court and petitioners were facing their trial ---High Court had already confirmed bail before
arrest of accused persons in another case on same allegations and petitioners had made out their case for bail ---Bail before arrest was confirmed in circumstances.
The State v. Haji Kabeer Khan PLD 2005 SC 364 rel.
Sohail Ahmed Rajput for Petitioners (in C.P. No.13 of 2017).
Ch. Mumtaz Yousaf, D.P.G. and Riaz Akhtar Tareen, Special Prosecutor, NAB for Respondents (in C.P. No.13 of 2017).
Syed Iqbal Shah for Petitioner (in C.P. No.69 of 2017).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor, NAB for
Respondent (in C.P. No.69 of 2017).
Miss. Sarwat Hina for Petitioner (in C.P. No.1203 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor, NAB for
Respondent (in C.P. No.1203 of 2016).
Sohail Ahmed Rajput for Petitioner (in C.P. No.1210 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor for Respondent (in
C.P. No.1210 of 2016).
Petitioner in person (in C.P. No. 1212 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor for Respondents (in C.P. No.1212 of 2016).
Petitioner in person (in C.P. No.1213 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor for Respondents (in C.P. No.1213 of 2016).
Kamran Murtaza for Petitioner (in C.P. No.1214 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor for Respondents (in C.P. No.1214 of 2016).
ORDER
NAZEER AHMED LANGOVE, J .---Through this common order, we shall dispose of
the Constitution Petitions Nos.13, 69, of 2017 and 1203, 1210, 1212, 1213 and 1214 of 2016
having common question of facts and law.
2. The facts of the above constitutional petitions are that during the course of inquiry by the
NAB Authority Bal ochistan related to record of Education Department and office of Accountant
General of Balochistan revealed that 125x mismatch names of teachers were forwarded to concerned officers of Education Department (Schools) in Quetta for provision of their appoint ment orders. On verification it was found that out of 125x teachers 104 appointments
were "Bogus" on completion of investigation besides Reference No. 11 instant References 9 and 10 of 2016 were also filed against the petitioners on the ground that after m aking investigation
against each set of accused which revealed the following 7x teachers were appointed/adjusted by
petitioner Abdul Karim Khiazai (C.P. No. 1213/2016) in connivance with Nizam -ud-Din (C.P.
No. 1212/2016) and Ghufran Ahmed (C.P. No. 1214/2016).
i. Sajjad Ahmed son of Shah Dost, JVT
ii. Murad Baksh son of Hazoor Baksh, JVT
iii. Mangal Khan son of Humbo Khan, JVT
iv. Kabil Khan son of Nokaf Khan, JVT
v. Ghulam Sarwar son of Meer Muhammad, JVT
vi. Muhammad Ehtisham son of Muhammad Asad, JET
vii. Illahi Baksh son of Nazar Ali, JVT
3. The learned counsel for the petitioners contended that involvement of the petitioners in
the instant Reference is based on mala fide and ulterior motives as they had already been
participated in the inquiry, investig ation and on the same allegation almost petitioners' bail
before arrest was confirmed by this court and in C.P. No. 03/2016 and others vide Judgment dated 30.12.2016. Petitioner Abdul Karim (C.P. No. 1213/2016) contended that on the same allegation after i nquiry and investigation Reference No.10 of 2015 was filed against officers of
the Education Department but he was found innocent. He further submitted that he had been
retired in March, 2011 and despite his innocence in the previous two References he was again
called to face the same allegation in the instant Reference which according to him smacks mala fide on the part of the respondent. The learned counsel for the petitioner Ghufran Ahmed (C.P. No. 1214/2016) contended that the only allegation against the petitioner is that he initiated the salaries of bogus teachers on the basis of fake appointment orders, whereas petitioner Ghufran at the relevant time was holding the post of Ex -Deputy District Officer Education (Male), Zarghoon
Town Quetta had neither drawing and disbursement (DDO's) powers nor any reference of such
powers has been given in the impugned Reference. The learned counsel for the petitioner Abbas
Raza, Ahsan Ullah and Syed Wajahat Hussain contended that salaries of teachers were activated by the officials of Accounts Officers, Office of Accountant General Balochistan as per rules and
regulation and in the previous Reference i.e. Reference No. 11 on the same allegation their pre -
arrest bail have been confirmed in C.Ps. Nos. 17 and 18 of 2016 r espectively, therefore, in the
instant Reference their involvement reflect mala fide. The petitioners had extended full
cooperation and provided all the relevant documents during inquiry and investigation, therefore, they are entitled for confirmation of their bail before arrest and petitioners (C.Ps. Nos. 13 and 69 of 2017) are entitled for grant of post arrest bail.
On the other learned DPG and Special Prosecutor, NAB strenuously opposed the
Constitutional petitions by arguing that the grant of pre -arres t bail is barred under NAB
Ordinance 1997. It was maintained that the petitioners with connivance of each other initially succeeded in appointing bogus teachers and thereafter, managed to activate their salary in utter violation and disregard of procedures , primary duties as per job description, rules and
regulations. In this regard inquiry was conducted by the NAB authority during course whereof it revealed that the petitioners by misusing their authority/ office have caused a loss of Rs. 4,385,073 (Rupees Forty Three Lacs Eighty Five Thousand and Seventy Three Only) as such
they exposed themselves to be arrested and tried.
4. We have heard the learned counsel for the parties and tentatively perused the record. As
regards the jurisdiction of the High Court regarding grant of pre -arrest bail in National
Accountability Bureau Ordinance, 1999 it has been held in the case titled as The State v. Haji Kabeer Khan (PLD 2005 SC 364).
"The High Court would exercise its powers in rare and exceptional circumstances for
valid reasons. In Khan Asfand Yar Wali v. Federation of Pakistan Through Cabinet
Division (PLD 2001 SC 607) The Hon'ble Supreme Court of Pakistan has devised a
strategy for granting bail to such accused persons through Constitutional Jurisdiction of the H igh Court, Provided their cases are arguable for the purpose of grant of bail".
In the instant case the allegation against Abdul Karim Khiazai is that he in connivance
with petitioners Nizam- ud-Din and Ghufran Ahmed appointed 7 bogus teachers in District
Quetta and petitioners Abbas Raza, Ehsan Ullah and Syed Wajahat Hussain in violation of procedure, activated salaries of alleged bogus teachers. The petitioner Abdul Karim has taken plea that he had been retired in March, 2011 and during the period of alle ged appointment he was
out of country. The question related to petitioner Ghufran Ahmed as to whether he at the relevant
time being Ex -Deputy District Officer Education (Male) Zarghoon Town Quetta had DDOs
Power to initiate the salaries of impugned bogus t eachers or as to whether official/officer of
office of Accountant General Balochistan, Quetta acted in violation of any law, rule or regulation
and bringing their case under NAB Ordinance are the exceptional circumstances which are yet to be decided by the trail court. The References in question had already been submitted before the
trial court and petitioners are facing their trial. This court, in C.Ps. Nos. 03, 17, 18 and 21 of 2016 related to reference No.11 on almost same allegations confirmed bail befo re arrest of the
above referred petitioners vide judgment dated 30.12.21016, therefore, a case for confirmation of bail before arrest and post arrest is made out in favour of petitioners.
In view of the above vide short orders dated 06.03.2017, Constituti on Petitions Nos. 13,
69 of 2017 and 1203, 1210, 1212, 1213 and 1214 of 2016 were allowed and petitioners pre -arrest
bail were confirmed and petitioners in Constitution Petitions Nos. 13 and 69 of 2017 were granted post arrest bail. These are the reasons o f short orders of even date i.e. 06.03.2017.
MH/120/Bal Bail allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.