BASHIR AHMED SHAIkH vs THE STATE (NAB)
This criminal miscellaneous application was filed by the appellant, Bashir Ahmed Shaikh, seeking suspension of sentence and grant of bail pending his appeal against the judgment dated 17-7-2005 passed by the Accountability Court, arising out of a National Accountability Bureau (NAB) reference. The core legal question was whether the appellant had made out a sufficient prima facie case for the suspension of his sentence and release on bail pending the hearing of his appeal, given his arguments regarding lack of direct connivance, tenure of employment, and potential delay in hearing the appeal. The Sindh High Court held that the trial court's assessment of evidence demonstrated prima facie responsibility on the part of the appellant for criminal negligence and allowing substandard construction work resulting in loss to the exchequer, and that any apprehension of delay could be remedied by fixing the appeal for an early hearing. The court laid down the principle that bail pending appeal in accountability cases will be refused where a prima facie case of culpability is established from the record and the appellate hearing can be expedited.
- Whether bail pending appeal can be granted to a convict in a National Accountability Bureau reference when prima facie evidence connects him to the alleged financial loss and substandard construction?
- Does the mere pendency of multiple connected appeals justify the release of a convict on bail when the court is prepared to fix an early date for the hearing?
- Is a site engineer or associate of a project consultant prima facie responsible for corrupt practices and financial detriment when signing measurement books for below-specification work?
ORDER
1. ' Through this application appellant has sought bail pending this appeal against judgment dated 17-7-2005 passed by learned Judge, Accountability Court No,II arising out of Reference No,32 of 2003.
2. ' Mr. Azizullah Shaikh, learned counsel for petitioner has taken the following grounds during the course of his arguments.
(1) That the work of construction of buildings in question started in the year 1990 while appellant was appointed on 15th April, 1991 and left his job in July, 1993, while the construction work was still going on reaching its completion in the year 1995.
(2) That neither the site where the buildings in question were raised was selected by appellant nor the site for the purpose of its suitability to bear the load of the buildings was investigated by petitioner.
(3) That even there is materials available on record that petitioner supervised the construction to say that he was responsible for use of low standard material causing cracks in the buildings;
(4) That out of 55 only 15 buildings in question were checked and it was found that sub-standard material was used, without specifically holding that appellant was responsible for use of such substandard material in raising the said buildings.
(5) That a particular point (point No,7) was framed for determination whether the site. Engineer of the Consultant (A.Q. Alvi a co-accused) has connived with Assistant Executive Engineer and contractors in their corrupt practices in use of sub-standard, low category and below specification material in the construction works. While determining the above point no where it has been held that appellant had so connived with the concerned Consultant, Engineer and Contractors in their corrupt practices, hence appellant was entitled to the grant of bail.
(6) Appellant was on bail during the course of trial and that this appeal filed by appellant stood admitted for regular hearing. The same is to be taken up along with other six appeals filed by several other convicts, hence there is no likelihood for an early decision in all these appeals in the near future, while the position of the evidence remains the same as assessed during the course of trial, hence appellant is entitled to be granted bail.
3. ' Mr. Shafaat Nabi K. Sherwani, learned DPG, NAB has vehemently disputed the contention as are shown at Serial Nos.1 to 5 above. As regards Mr. Sheikh's contention shown at Serial No,6 above, he has expressed that even today he is ready to proceed with the regular appeal; therefore, it cannot be said that the proceedings in this appeal shall be delayed, as has been alleged by Mr. Shaikh.
4. ' We have given due attention to arguments of both the learned counsel and with their assistance, we have gone through the material made available before us. As regards contentions of Mr. Shaikh shown at Serial Nos.1 to 5, it may be stated that Point No,7 was discussed along with other Points Nos.4, 5, 6 and 8. On this, as it appears, learned trial Court during its discussion, has referred to the evidence of P.W.1 Syed Zulfiqar Haider who was co-opted as technical expert by the Building Advisory Committee of University. The report of the project, has also been taken into account by learned trial Court. In this, learned trial Court has observed that the said witness stated in his deposition that sub-standard material was used in the construction, poor and low category material was (sic) construction, ratio of the cement was much less than the required quantum, at many places no cement was used, such as under the floor and the over all strength of the cement concrete was less than the required strength of 3000 pounds per square foot, and it was found to be 2000 pounds per square foot to. 22,00 pounds per square foot. It is also observed by learned trial Court that the above witness was subjected to thrashing cross on behalf of accused persons however, he was not shaken rather it came on record that the brick masonry work was so poor that cracks appeared due to poor and less ratio of cement used, and that on the basis of entries recorded in the measurement books, amount was paid by the concerned Assistant Executive Engineer. At another place learned trial Court has observed that the site Engineer Bashir Ahmed Sheikh was deputed by A.Q. Alvi (co-accused) at the site and that the appellant criminally neglected to perform the part of his obligations by allowing the contractors to carry out the work of below specification, and that he mechanically signed the measurement books recorded by the Assistant Engineers. Thus, prima facie, we are to the view that appellant, though claimed to be private employee of co- accused A.Q. Alvi, a consultant of the project, yet being his associate and having omitted to verify the entries in the measurement books, to the detriment of Government exchequer, appears to be prima facie responsible for the offence alleged against him. As regards the question that delay might be caused in disposal of this appeal, that difficulty can be overcome by fixing this appeal on some short date. Accordingly, we are clearly of the view that no case for grant of bail has been made out for release of petitioner during pendency of this appeal.
5. Consequently, we dismiss this application. Office is required to see that all the identical/connected appeal be tagged together and fixed for hearing on some early date.