The Sindh High Court (SHC) on Monday allowed the National Accountability Bureau’s (NAB) petitions against the transfer of multi-billion corruption references from accountability courts to other courts, and said that references filed by NAB would be deemed to be pending with the respective accountability courts.
Issuing a detailed judgment on NAB’s petitions, an SHC division bench headed by Justice Mohammad Saleem Jessar ordered that if NAB has implemented the impugned orders and sent the references for trial in anti-corruption courts or to any other forums, NAB would file an application with the said courts or forums and get the references returned to the accountability court where they were pending.
The court said that the accountability courts, on receiving the record and proceedings of the references, are expected to proceed with the references expeditiously. NAB had filed petitions against the transfer of corruption references by the accountability courts to federal and provincial anti-corruption and other relevant courts due to want of pecuniary limits.
According to NAB, references were filed against Iqbal Z Ahmed and others as regards the illegal sale and purchase of LPG and NGL, involving a loss of Rs22 billion to the national exchequer, and National Bank officials, including Ali Raza and others, for misusing authority and causing a loss to $27.9 million.
References were also filed against the illegal transfer of state land by revenue officials to private builders in Karachi, and the illegal purchase of medicines by Qazi Wahab and others, causing a loss of Rs679.913 million. References were also filed against the illegal transfer of state property by Iftikhar Qaimkhani and other, causing a loss of Rs2.543 billion, and KPT officials, including its former head Ahmed Hayat, for causing a loss of Rs21.45 billion.
The court said that after the perusal of the impugned orders, it was revealed that while passing orders on applications for the return of reference, the accountability courts did not seek the assistance of NAB for case examination.
The court said that it was a mandatory requirement envisaged under Subsection 4(d) of Section 4 of the National Accountability Ordinance (NAO), spelt out from the use of the word “shall” in the said provisions.
The court said that had it been the case, NAB would not have preferred petitions against the impugned orders. The court said that in all these cases, an interpretation as to the applicability of the provisions of Section 9 of the NAO was required, so the writ petition was also maintainable.
The court dismissed the NAB application against former Sindh police chief Ghulam Haider Jamali and others, and directed NAB to send the reference to the department. The court said if the appointees recommended by the accused facing trial were still working in the police department and no disciplinary action had been taken against the appointees, the reference would stand quashed.
The court said that in case the disciplinary action of removal from service has been taken against the appointees, recovery proceedings against the accused making appointment would be taken under the provisions of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1974, and the incurred loss would be recovered from the officers responsible from their salary or pension, as the case may be.
The court also upheld the impugned orders in the cases of Asif Siddiqi and others, Wamiq Mohammad Yousuf, and Abdul Salam Mandhro and others. The court remanded back the petitions in the Adam Jokhio case to the accountability court with directions to re-examine the case with NAB’s assistance.
The court also ordered that on determination whether the case falls under Section 5(o) or 5(s) of the NAO, the accountability court would pass a fresh order on the application filed by the accused for the return of reference, after granting a right of hearing to all concerned.
Regarding the transfer of revenue land cases, the court said the trial court gave the benefit of Subsection a(vi) of Section 9 to the accused without rendering its findings as to how the said provisions applied to the cases, where the question of transfer of government lands to private persons through forgery was involved.
The court said the officers of the revenue department are custodians of the record of rights of immovable property that include both public and private, so they are required to maintain the record of rights free from any suspicions.
The court said that it is clear that an essential element for making out and establishing a case of criminal breach of trust is the entrustment of property or money or with any dominion over property, which is dishonestly misappropriated or dishonestly used or disposed in violation of any direction prescribed by law or the mode in which such trust was to be discharged or in the context of any contract, etc.
The court said that in the case of a revenue officer, he is entrusted with public property to safeguard public interest, so anything which is done contrary to the law would constitute an offence of criminal breach of trust.
