BASHARAT HUSSAIN Versus CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU

MALIK HAQ NAWAZ, J.--- The petitioners have been booked on the charges as provided in section 9(a) of National Accountability Ordinance, 1999 and are in judicial lockup.

2. The gist of allegations contained in para-6 of the reference prepared by NAB authorities as under:-

Para-6. "That accused at serial No. 1, in connivance with other accused Bank Officials, illegally and malafidely managed to clear goods from the custom authorities without paying the custom duties and taxes, hence he caused loss to the national exchequer to the tune of Rs. 30,738,758/-." and similarly, the accusations against the petitioner No. 2 are in para-7, which is as under:-

Para-7. "That accused at serial No. 2, in connivance with other accused Bank Officials, illegally and malafidely managed to clear goods from the custom authorities without paying the custom duties and taxes, hence he caused loss to the national exchequer to the tune of Rs. 8,110,071/-"

3. The learned counsel for the petitioners submitted at bar that the petitioners are traders/clearing agents by profession and have been booked under section 9(a) of National Accountability Ordinance, 1999. The learned counsel stated at bar that the alleged fraud/embezzlement took place in the branch of National Bank of Pakistan at Sost, the petitioners could not be linked with the alleged offence as they are neither the employees nor office bearers of the said branch. Per learned counsel the alleged fraud/embezzlement was of high tune ranging up to 2.2 billion and this huge shortage have been cleared by the National Bank of Pakistan main branch, Gilgit to the account of CBR by transferring the whole amount to CBR account which shows that the fault was on the part of National Bank of Pakistan and not on the part of any clearing agent. The bank authorities are now after the clearing agents to effect recovery of the alleged embezzled amount and NAB authorities playing as a tool to achieve the object of National Bank. The learned counsel drew our attention towards the facts, that two main responsible functionaries of the said branch namely Izat Baig and recovery Manager Kifayatullah have been discharged from the liability after settling a plea bargain with the NAB and only deposited 22 lacs each, against a total embezzlement of 2.2 billion, which is a mockery of the countenance of anti corruption and NAB laws. The authorities of National Bank did not resist the plea bargain and accepted a petty amount with open arms which smacks that the bank authorities from top to bottom were involved in this tragic episode, which caused a huge loss to the State exchequer.

4. On the other hand the Special Prosecutor NAB, submitted at bar that the petitioners are prima facie linked with the above offences as they defrauded the bank, through depositing cheques of various amount, which were later on dishonored. The learned Special Prosecutor further submitted that because of the fraudulent act of the petitioners, the Government exchequer has been attenuated to the tune of 2.2 billion, which has deteriorated the image and has damaged the reputation of the institution and such a huge loss has caused irreparable loss to an already depleting economy. Such a big blow has proved to be the last nail in the coffin of the institution. The learned Special Prosecutor prayed that 12 traders/businessmen are prima facie involved in the scam, therefore, the bail, which is otherwise barred under section 9(b) of the Ordinance, should not be allowed to the petitioners as the reference is likely to be filed before the Accountability Court in the near future.

5. We heard both the learned counsel of the parties at length and have also gone through the material available on record. We feel pinched and pricked, when confronted with such situations involving huge amount and the liabilities running into billions of rupees and can term it a mega financial scam of Gilgit-Baltistan and that too in an institution like National Bank of Pakistan, the unfortunate and tragic aspect of this altogether darkened scenario is the fact that the bank authorities were main privy to the offence and whole of this transaction was carried out under their nose. We may observe without any reservations that:-

6. The manager of Sost branch namely Izzat Baig and recovery officer Kifayatullah have been exonerated from the case after settling a plea bargain and they only deposited rupees 22 lacs each as admitted by the NAB authorities before us, against a huge amount of Rs.2.2.billion which cannot said to be a fair play even in the wildest imagination and this mischievous plea bargain was unwarranted and illegal blessing of NAB authorities has emboldened the people of like propensities and has given a Phillip to those satanic minded people who are ever ready to suck the blood of nation in particular and that of the country in general. This vicious and perversely multi dimensional play, our fear would continue, rather will be promoted for the reasons that such a big financial mischief cannot be committed without knowledge of the high ups of National Bank of Pakistan Gilgit, where daily transactions of all the subordinate branches are tallied and amount is transferred from small branches to the main branch at Gilgit.

7. The Regional Manager (Operation) and Regional Chief are not insight, who were under the legal obligation by virtue of their appointment/designation to be held responsible, but the dilemma of this Country is that the actual beneficiaries are never taken to the task and are let free by the Anti Corruption Agencies for some extraneous considerations and such despicable acts cannot be seen with blessing eyes by this Court.

8. For the sake of arguments, even if it be construed that the traders have any link with the said financial mischief, would it be of any practicable utility for the prosecution while juxtaposed with the set of circumstances, revealing the bleak reality that the main culprits, who in fact are the real beneficiaries of this whole transaction have been let off and there exists not even the remotest possibility to try them again since they are guarded by the shield of section 403, Cr.P.C. and Article 13 of Constitution of Pakistan, 1973. In furtherance the blue eyed treatment meted out to the main culprits and treating the rest in a step motherly manner would altogether ruin the confidence and repose of general public which they vest in such institutions having a high stature. In para-19 of the allegation summary, it has been admitted that accused Izat Baig was responsible being Manager NBP, Sost branch for affixation of stamps on good declaration receipt and none else which is reproduced as under:-

Para-19.... That accused namely Izzat Baig as Manager NBP Sost Branch willfully, knowingly and with criminal intent while misusing his authority gave undue and illegal favours/benefit to the traders/clearing agents at NBP Sost Branch during the period 2012-13 by supporting the illegal acts of signing of GDs without receiving duties and issuing bank scroll to custom authorities with fictitious figures. The accused admitted his guilt and applied for plea bargain and deposited his liability for an amount of Rs. 2,291,630/- which has been accepted by the competent authority and approved by the learned Accountability Court, Gilgit.

9. The reproduction of para-19 (supra) suggests that bank authorities are themselves conceding that their own Manager was involved, who stamped all these G.Ds, amounting to rupees 2.2 billion. The traders who got their goods cleared after depositing a valid bank deposit receipt, how could be held responsible, is a question of further inquiry. The Bank Manager Sost and his staff if colluded with the traders, then, what happened was a natural outcome, for which the bank as an institution has to suffer. Traders may possibly have a connection with the said officers, but the foundation of this scam was laid down by the bank employees, who pick pocketed their own dwelling house.

10. As stated above, the Bank Manager and one Kifayat are already out of scene after availing the facility of plea-bargain. We feel that the object of special legislation is being defeated. Despite a period of 90 days, the references against the accused have not been filed and the very object of section 16 of NAB Ordinance, 1999 is being defeated. Now superior Courts of the country are unanimous that bail cannot be withheld as measures of advance punishment and people cannot be allowed to rot in jail for an indefinite period.

11. As observed above that the main accused have been discharged from the case by NAB authorities and the liability of the petitioners will be determined by the trial Court after recording of evidence. The case of the petitioners falls within the domain of further inquiry and, we allow bail to the petitioners subject to their furnishing bail bonds in the sum of Rs.20,00,000/- (Rupees twenty lacs only) with two sound local sureties to the satisfaction of Judge Accountability Court Gilgit.

HBT/90/GB Bail granted.