Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 837 of 2016

along with C. Ps. No. D – 892, 1408, 1825, 1905 of 2016, 364, 365, 366 and 943 of 2019.

 

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

 

 

For bail before arrest

 

 

Date of hearing                    :           29.10.2019.

 

Date of announcement      :           05.11.2019.

 

 

Mr. Nisar Ahmed Bhanbhro, Advocate for petitioners in C. Ps. No. D-837, 1825, 1905 of 2016, 365, 366 and 943 of 2019.

Mr. Shah Muhammad Bango, Advocate for petitioners in C. Ps. No. D‑892 and 1408 of 2016.

Mr. Humayoun Sheikh, Advocate for petitioners in C. P. No. D-364 of 2019.

Mr. Muhammad Zubair Malik, Special Prosecutor NAB Sukkur along with Danish Iqbal, Investigation Officer, NAB Sukkur.

Mr. Ali Raza Pathan, Assistant Attorney General.

 

 

O R D E R

 

 

NAIMATULLAH PHULPOTO, J. – Through the instant Constitution Petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners Ayaz Ahmed Soomro, Ali Gul Phull, Sher Muhammad Weesar, Ghulam Sarwar Abbasi, Ghulam Nabi Babbar, Mir Muhammad Sario, Sadoro Abro, Tariq Hussain Abbasi, Qurban Ali Memon and Iftikhar Ahmed Langah seek pre-arrest bail in Reference No.01/2019, pending before learned Judge, Accountability Court, Sukkur.

2.         The facts leading to filing of Reference are that in C. P. No. D-6105 of 2014, this Court vide order dated 20.01.2016, referred matter to Chairman, NAB to scrutinize the works for the Annual Development Program for the year 2014-15 of Irrigation East and West Divisions, Khairpur and to act in accordance with law and made following observations:

“          The Petitioner Kamran Ali Jalbani had filed the instant petition, pointing out that the various contracts in the irrigation department are granted without following the Sindh Public Procurement Rules 2010 (hereinafter referred to as “SPPRA”) and that too, to the firms either of the blue eyed or the close relatives and of course for extraneous considerations. Petitioner had further pointed out that the nature of work involved in ADP works 2014-15 is such that it execution can hardly be verified and therefore, without execution of any work billions of rupees of the exchequer has been plundered.

            Notices were issued and the Superintendent Engineer effected appearance and submitted that after conducting pre-qualification process the works accordingly were awarded and that there was no irregularity. However, the list of ADP work for the year 2014-15 reflects that it consists and comprises of CC lining, Earth work, Retaining walls, Stone pitching etc., of course such work could hardly be verified, however, it transpire that 17 out of 23 works were awarded to M/s. Hyder Ali Jarwar and M/s. Ghulam Sarwar & Company who according to the Petitioner are owned by one person as Hyder Ali Jarwar was an employee of Ghulam Sarwar and now is acting for Ghulam Sarwar as an independent entity. On 05.01.2016, we were about to refer the matter to the NAB as there was sufficient material to investigate the corruption and corrupt practices in accordance with Section 9 of the NAB Ordinance, 1999, however, the Secretary Irrigation requested for a week’s time by assuring that a well-known and honest officer would be deputed to investigate and initiation of proceedings against the person found responsible and consequently we granted 15 days’ time and fixed the matter for hearing today.

            Today, the Petitioner is called absent and obviously his grievance must have been remedied. The detailed report is submitted which is taken on record, acknowledgement that it was not possible to inspect each and every component of all the work which was termed as unsatisfactory and it has been reported that in many cases, notwithstanding, the fact that the work has not been completed all the payment has been released. We are shocked to note that out of 11, 10 contracts in Khairpur Division East were allotted to Hyder Ali Jarwar and Ghulam Sarwar & Company, whereas, in Khairpur Division West also 7 out of 13 works were allocated to the same company which means 74% of the total scope of work in both divisions. The overall conclusion reflects that the quality of work is generally poor. It further appears that in consequent to such report Show Cause Notice under Section 3 of the Removal from Service (Special Powers) Sindh, Ordinance 2000 have been prepared and placed before the Chief Secretary to get them issued against Bahadur Khan Ujjan, the then Executive Engineer, West Division Khairpur and Ayaz Ahmed Soomro, Executive Engineer, East Division Khairpur. However, the alarming thing which we have found out from the show cause notice that Statement of Allegations at Serial No. iv reflects “that you made payment without completion of the works”.

            In the facts and circumstances, to our minds it appears to be a fit case wherein Reference can be made to the Chairman, NAB to scrutinize the works for the Annual Development Program works for the year 2014-15 of the Irrigation East and West Divisions, Khairpur and to act in accordance with law. However, it is made clear that no arrest whatsoever shall be made unless and until tangible material connecting the officers of the Respondent with the commission of crime comes to the hands of the NAB in terms of the dicta laid down by this Court in the case of Mazharuddin vs. The State (1998 P.Cr.L.J. 1035). ”

3.         For the sake convenience, relevant portion of Reference No.01/2019 pending before the trial Court is reproduced as under:

5.         That during investigation it has established that accused No. 1 to 6 / Officers / Officials of Irrigation Department East Division Khairpur and accused No. 7 to 11 / Contractors have jointly and severely committed offence of corruption & corrupt practices in connivance and collaboration with each other by not executing work at all in 7x schemes and execution of partial work in 4x schemes. Thereafter they withdrew illegal payments for which they were not entitled. Accused No. 1 to 6 misused their authority and rendered undue benefit to accused No. 7 to 11 which resulted loss to the National Exchequer to the tune of Rs. 893,034,70/- (Eight Crore, Ninety Three Lacs, Three Thousand & Four Hundred Seventy Rupees Only). Thus accused No. 1 to 11 have committed the offence of corruption & corrupt practices as defined in section 9 (a), (iii), (iv), (vi) & (xii), punishable u/s 10 of the NAO, 1999 and Schedule thereto.

6.         That on appraisal of the material and evidence placed before me, I am of the opinion that it would be proper and just to proceed further against the accused persons as there is sufficient incriminating material to justify the filing of reference. Therefore, the matter is referred to this Hon’ble Court under Section 18 (g) of the National Accountability Ordinance, 1999. The investigation report, statements of witnesses recorded u/s 161 Cr.PC, seizure memos documentary evidence and witnesses etc are attached as per list are attached herewith.

            It is therefore respectfully prayed that the accused No.01 to 11 may kindly be tried by this Hon’ble Court and punished in accordance with law.

4.         Mr. Nisar Ahmed Bhanbhro, learned counsel for petitioners Ayaz Ahmed Soomro, Ghulam Sarwar Abbasi, Ghulam Nabi Babbar, Tariq Hussain Abbasi, Qurban Ali Memon and Iftikhar Ahmed Langah mainly contended that all the schemes have been completed by the petitioners and no amount has been embezzled by them. Mr. Bhanbhro referred to 161, Cr.P.C statements of the Experts of NAB namely Junaid Hashim, Syed Kashif Ali Shah and Shamsuddin Shaikh, and argued that these Experts, in their statements, no where has mentioned the date of inspections of the sites. It is also argued that NAB experts inspected sites in absence of petitioners. It is further contended that yet works were under the progress but NAB in hasty manner initiated inquiry and filed the Reference against the petitioners for the mala fide reasons. It is submitted that high officials of Irrigation Department who had misused authority were not joined as accused by NAB, it is a case of selective accountability. Lastly, submitted that petitioners are prepared to deposit liability determined against them. In support of the contentions, he has relied upon the cases reported as Abdul Sattar v. National Accountability Bureau (NAB) & others (SBLR 2019 Sindh 1109), Abdul Qadir Memon and others v. Director General National Accountability Bureau (Sindh) and others (2019 YLR 689), Syed Ather Hussain and others v. Chairman, National Accountability Bureau and another (2019 YLR 788), Muneer Ahmad Sheikh and another v. Director-General NAB Karachi and another (2019 SCMR 1738) and Shamraiz Khan v. The State (2000 SCMR 157).

5.         Mr. Shah Muhammad Bango, learned counsel for petitioners Ali Gul Phull and Sher Muhammad Weesar adopted the arguments advanced by Mr. Nisar Ahmed Bhanbhro. He further argued that both petitioners are prepared to deposit the liabilities, if determined by NAB.

6.         Mr. Humayoun Sheikh, learned counsel for petitioners Mir Muhammad Sario and Sadoro Abro argued that both petitioners were contractors. They had received the cheques at the instance of high officials. Lastly, it is contended that petitioners were not beneficiaries in any manner and they have been involved by NAB with mala fide intention. Lastly, argued that petitioners are prepared to deposit the liabilities.

7.         Mr. Muhammad Zubair Malik, learned Special Prosecutor NAB argued that accused No.1 to 6 misused their authority and rendered undue benefit to accused No.7 to 11 which resulted loss to National exchequer to the tune of Rs.8,93,03,470/-. It is further argued that petitioners have committed offence of corruption. The schemes were not completed, but the amount was released to the contractors. He further submitted that experts namely Junaid Hashim, Syed Kashif Ali Shah and Shamsuddin Shaikh inspected the sites and found poor work and releases were made beyond the works actually done. It is argued that inquiry was initiated by NAB on the orders of High Court, mala fide on the part of NAB is missing in this case. Lastly, it is contended that yet evidence of the material witnesses is to be recorded. Learned Special Prosecutor NAB opposed pre-arrest bail to all the ten (10) petitioners. In support of his submissions, reliance is placed upon the cases of Malik Din v. Chairman National Accountability Bureau and another (2019 SCMR 372) and Rana Abdul Khalig v. The State and others (2019 SCMR 1129).

8.         We have carefully heard the learned counsel for the parties and perused the available record.

9.         During investigation, it transpired that petitioner Ayaz Ahmed Soomro, Executive Engineer, East Division, Irrigation Department, Khairpur was approving and signing authority in issuing payments to different contractors after ensuring quality and quantity of the work. He misused his authority and failed to exercise his official authority in transparent and lawful execution of different irrigation work at sites. He released payments to the contractors without ensuring execution of work and assuring the quality and quantity of work at sites and caused loss to National Exchequer in 11x Schemes jointly and severally amounting to Rs.8,93,03,470/-. He failed to ensure the implementation of SPP Rules, 2010 regarding Integrity Pact Performance security, bid proforma & hoisting of Pre-Qualification of Contractors, thus, violated Rules-10, 39 & 89 of SPP Rules, 2010. Petitioner Ali Gul Phull, Assistant Executive Engineer, Sub-Division, Khairpur failed to ensure that actual measurements were recorded in the measurement books (MBs) due to which illegal / excess payments were made to the contractors. He misused his authority and failed to exercise his official authority in transparent and lawful execution of different irrigation work at sites and caused loss to National Exchequer in 7x Schemes jointly and severally amounting to Rs.2,57,73,762/-. Petitioner Sher Muhammad Weesar, Assistant Executive Engineer, Faiz Ganj Sub-Division, Khairpur failed to ensure that actual measurements were recorded in the measurement books (MBs) due to which illegal / excess payments were made to the contractors. He misused his authority and failed to exercise his official authority in transparent and lawful execution of development work at sites. He in collusion with other accused persons including officers / officials and contractors of Irrigation East Division, Irrigation Department, Khairpur Mir’s caused loss to National Exchequer in 3x Schemes jointly and severally amounting to Rs.6,05,77,308/-. Petitioner Ghulam Sarwar Abbasi was Government Contractor of Irrigation Department (East Division), Khairpur and involved in embezzlement of funds in 5x schemes. He failed to execute the exact quality and quantity of work of different Irrigation sites and undertook no work / partial work but received payments in excess illegally and caused loss to national exchequer in 5 x schemes jointly and severally amounting to Rs.5,41,99,437/-. Petitioner Ghulam Nabi Babbar, Assistant Executive Engineer Sub-Division Mirwah failed to ensure that actual measurements were recorded in the measurement books (MBs) due to which illegal / excess payments were made to the contractors. He misused his authority and failed to exercise his official authority in transparent and lawful execution of development work at sites and caused loss to National Exchequer in 2x Schemes jointly and severally amounting to Rs.1,85,52,800/-. Petitioner Mir Muhammad Sario was Government Contractor of Irrigation Department (East Division), Khairpur and involved in embezzlement of funds in 2x schemes in Joint Venture with Sadoro Khan. He failed to execute the exact quality and quantity of work at different Irrigation sites and undertook no work / partial work but received payments in excess illegally and caused loss to national exchequer in 2 x schemes jointly and severally amounting to Rs.1,26,26,004/-. Petitioner Sadoro Abro (M/s Surhan Construction) was Government Contractor of Irrigation Department (East Division), Khairpur and involved in embezzlement of funds in 2x schemes in Joint Venture with Mir Muhammad Sariyo. He failed to execute the exact quality and quantity of work at different Irrigation sites and undertook no work / partial work but received payments in excess illegally and caused loss to national exchequer in 2 x schemes jointly and severally amounting to Rs.1,26,26,004/-. Petitioner Tariq Hussain Abbasi (M/s Tarique Hussain), was Government Contractor of Irrigation Department (East Division), Khairpur and involved in embezzlement of funds in 2x schemes. He failed to execute the exact quality and quantity of work at different Irrigation sites and undertook no work / partial work but received payments in excess illegally and caused loss to national exchequer in 2 x schemes jointly and severally amounting to Rs.1,80,54,901/-. Petitioner Qurban Ali Memon, Assistant Executive Engineer Sub-Division Khairpur was directly affiliated with the sites, where the losses have been found. He failed to ensure that actual measurements were recorded in the measurement books (MBs) due to which illegal / excess payments were made to the contractors. He misused his authority and failed to exercise his official authority in transparent and lawful execution of different irrigation work at sites and caused loss to National Exchequer in 2x Schemes jointly and severally amounting to Rs. 2,04,51,299/-. Petitioner Iftikhar Ahmed Langah, Assistant Executive Engineer, Sub-Division, Khairpur was directly affiliated with the sites, where the losses have been found. He failed to ensure that actual measurements were recorded in the measurement books (MBs). He prepared bills and submitted the same, which bear his signatures due to which illegal / excess payments were made to the contractors. He misused his authority and failed to exercise his official authority in transparent and lawful execution of development work at sites. He failed to ensure execution of schemes and assure the exact quality and quantity of work at sites and caused loss to National Exchequer in 2x Schemes jointly and severally amounting to Rs.92,45,833/-.

10.       Junaid Hashim, Syed Kashif Ali Shah and Shamsuddin Shaikh, experts inspected works at sites and prepared report. Relevant portion is reproduced as under:

“The contractors, who received the payments, Executive Engineers, who made the payments & the Sub Divisional Officers who recorded the measurements on the items on which excess quantities were found are responsible. ”

11.       Prima facie, there is sufficient material against the petitioners as discussed above to connect them with the alleged offence. PWs Junaid Hashim, Syed Kashif Ali Shah and Shamsuddin Shaikh, in their 161, Cr.P.C statements, have stated that petitioners / officers of Irrigation Department made illegal / excess payment to the contractors / petitioners who received the illegal / excess payment and petitioners are responsible for embezzlement of Government funds to the tune of Rs.8,93,03,470/-. Moving on to the next contention of the learned counsel for the petitioners that the action of NAB was discriminatory, as it had singled out the petitioners to the exclusion of Superintending Engineer, Irrigation Department. We are afraid this contention is legally incorrect. It is by now a settled principle of criminal jurisprudence that challenging prosecution on the ground of discrimination by the State cannot be a complete valid defense to absolve an accused from criminal liability arising from his actions or inactions. Any person charged for a crime is answerable for his own acts and omissions and has to defend himself in a trial for the said charged offence. Reliance is placed upon the case of Malik Din v. Chairman National Accountability Bureau and another (2019 SCMR 372). Distinction is to be drawn between the ordinary criminal cases and is of corruption. The introduction to the National Accountability Ordinance elucidates that it has been enacted to eradicate “corruption” and “corrupt practices” and hold accountable all those persons accused of such practices. We are not inclined to extend concession of pre-arrest bail to the petitioners subject to deposit of liability for the reasons that petitioners have caused huge loss to National exchequer and sufficient material has been collected against them during investigation. Other contentions raised by learned counsel for petitioners require deeper appreciation of evidence, which is not permissible at this stage. Trial Court has recorded evidence of 04 witnesses. Any finding of this Court on merits of the case may prejudice the case of either party. NAB inquiry has been initiated on the orders of this Court. Learned counsel for the petitioners could not satisfy this Court on the point of mala fide on the part of NAB against petitioners. Grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction, it is diversion of usual course of law as held by Hon’ble Supreme Court in the case of Rana Abdul Khalig v. The State and others (2019 SCMR 1129). Relevant portion is reproduced as under:

“ 2.      Grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases, a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. Ever since the advent of Hidayat Ullah Khan's case (PLD 1949 Lahore 21), the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires considerations of mala fide, ulterior motive or abuse of process of law, situations wherein Court must not hesitate to rescue innocent citizens; these considerations are conspicuously missing in the present case. The case referred to by the learned Judge-in-Chamber unambiguously re-affirms above judicial doctrine and thus reliance being most inapt is unfortunate to say the least. ”

12.       Therefore, prima facie, there appear reasonable grounds for believing that petitioners have committed the alleged offence in which they are facing the Reference before the Accountability Court. Therefore, above Constitution Petitions filed by the above named petitioners for pre‑arrest bail are dismissed. Interim pre-arrest bail earlier granted to petitioners Ayaz Ahmed Soomro, Ali Gul Phull, Sher Muhammad Weesar, Ghulam Sarwar Abbasi, Ghulam Nabi Babbar, Mir Muhammad Sario, Sadoro Abro, Tariq Hussain Abbasi, Qurban Ali Memon and Iftikhar Ahmed Langah is hereby recalled.

13.       As the petitioners / accused have a right of speedy trial, trial Court is directed to decide same positively within three (03) months under intimation to this Court through Additional Registrar of this Court. Both, the defence and prosecution, are directed to cooperate with the trial Court and no unnecessary adjournment shall be allowed by the trial Court to any of the parties.

14.       Needless to mention that the observations made hereinabove are tentative in nature and trial Court shall not be influenced while deciding the case on merits.     

 

 

J U D G E

 

J U D G E

Abdul Basit