MUHAMMAD SHAFIQ NIRBAN vs NATIONAL ACCOUNTABILITY BUREAU
This is a petition for pre-arrest bail filed before the Sindh High Court by the petitioner, who apprehended arrest during an inquiry initiated by the National Accountability Bureau (NAB) regarding allegations of misappropriation of company funds. The core legal questions involved whether NAB had jurisdiction to investigate the matter after police challan had already been submitted in a judicial magistrate's court, and whether the petitioner was entitled to pre-arrest bail during the pending inquiry stage where no formal investigation order had yet been passed by the Chairman NAB. The Court held that since the inquiry was ongoing and no formal investigation had been authorized by the Chairman NAB, and considering the circumstances of the case, the petitioner was entitled to pre-arrest bail. The High Court confirmed the interim pre-arrest bail granted to the petitioner, directing cooperation with the investigating authorities while granting liberty to NAB to seek cancellation of bail if tangible material emerged during the investigation.
- Whether an accused is entitled to pre-arrest bail when an inquiry is pending before the National Accountability Bureau and no formal investigation order has been passed?
- Does the National Accountability Bureau have jurisdiction to investigate a matter already challaned before a judicial magistrate involving bank employees?
- Can interim pre-arrest bail be confirmed with liberty to the prosecution to move for cancellation upon emergence of tangible material during investigation?
- Section 408, Pakistan Penal Code 1860
- Section 381, Pakistan Penal Code 1860
- Section 16-A, Offences in Respect of Banks (Special Courts) Ordinance 1984
ORDER
1. RAHMAT HUSSAIN JAFFERI, J.---This is a petition for grant of pre-arrest bail. The petitioner apprehends his arrest during the process of inquiry initiated by NAB Authorities on the allegations that the petitioner, who was accountant in Messrs Saratex (Pvt.) Limited, had misappropriated the amount of the company by drawing various amounts through cheques from the account of the company. The petitioner's case is that the company had lodged the F.I.R. No,60 of 2002 for Offence punishable under sections 408 and 381, P.P.C. On 4-4-2002' on the same allegation. After the investigation, the case was challaned, which is pending before the Court of Vth Judicial Magistrate, Karachi-South. The petitioner has been granted bail in the said case. The company had also filed Civil Suit bearing No,180 of 2005 for recovery of the amount drawn by the petitioner from the bank through alleged various cheques. The said suit is also pending.
2. ' The case of prosecution is that an application was moved before the F.I.A. Authorities for investigating the case as some banks' employees were also involved in the offence. After Notification dated '16-8-2004, the F.I.A. Authorities were debarred from investigating the case of misappropriation of amount therefore the said application was transferred to NAB Authorities. The NAB Authorities started inquiry. The Inquiry Officer has completed the inquiry and submitted the report to the Chairman, NAB with recommendation that investigation may be ordered in the matter. The learned DPGA has stated that so far the Chairman, NAB or an officer duly authorized by him has not passed any order with regard to the authorization of the investigation.
3. ' In these circumstances, the learned Advocate for the petitioner has argued that the petitioner is being harassed as he has already been sent for trial for commission of said offence; that at the most the cast could have been transferred to the Accountability Court.
4. ' The learned DPGA his stated that the case was investigated regular police who submitted enallan before the Court of Jude Magistrate but as the offence would fall under Offences in Respect, Banks (Special Courts) Ordinance, 1984 therefore the gravity of offer has been increased. As such, the NAB Authorities has jurisdiction to investigate the case. He has further stated that if at some later stage the Chairman NAB finds it expedient in the interest of justice that the case be transferred, then he can make request to learned Vth Judicial Magistrate, Karachi-South for transfer of the said case under section 16-A of the Ordinance. He has further stated that there is no mala fide on the part of the NAB Authorities or the petitioner has proved such allegation therefore the petitioner is not entitled to the concession of pre-arrest bail.
5. ' In the circumstances, it appears that the allegation was already investigated by the regular police and the case has been challaned in the Court of Vth Judicial Magistrate, Karachi-South. It appears that during the inquiry it has been found that some banks' officials are also involved therefore in such a situation the offence can be, only tried by Court created under the Ordinance of 1984. The inquiry report has been submitted. So far the Chairman, NAB has not passed any order referring the case for investigation. It is not known when such order will be passed or the investigation will be completed. In these circumstances we find that the petitioner is entitled to the grant of bail.
6. ' Thus, interim bail already granted to the petitioner is confirmed on same terms and conditions with direction to the petitioner to cooperate with the Investigating Officer or the NAB Authorities in the investigation. At the same time we are leaving it at the liberty of the NAB Authorities to move the Court for cancellation of bail, if some tangible material is brought on the record during the Courts of investigation.
7. ' The petition is allowed in the above terms.
8. ' The copy of the inquiry report was submitted before the Court for perusal. After perusing the same, the same has been returned to DPG, NAB.
9. Pre-arrest .
Cited by 2 cases
- SHARJEEL INAM MEMON Versus NATIONAL ACCOUNTABILITY BUREAU 2018 PCrLJN 34
- Syed. HAMID SAEED KAZMI vs THE STATE and another 2011 P Cr. L J 1357