IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
BEFORE:-
Mr. Justice Muhammad Faisal Kamal Alam&
Mr. Justice Amjad Ali Sahito
Constitutional petition Nos.D-423 of 2021
a/w C.P No.D-433, 436, 437, 445, 460 & 863 of
2021.
Crl.
Accountability Appeal numbers, name of the appellants and their Counsels
1.
Crl. Accountability Appeal No.D-19 of 2021,
InayatullahAbro. Through Mukesh Kumar G.Karara, advocate.
2.
Crl. Accountability Appeal No.D-20 of 2021, Ghulam
Abbas Shaikh.
3.
Crl. Accountability Appeal No.D-21 of 2021, Ghulam
Mustafa Hulio.
4.
Crl. Accountability Appeal No.D-23 of 2021,
AsifSardarArain.
5.
Crl. Accountability Appeal No.D-24 of 2021, ZamirHussainAbro.
Through Mr.Nisar Ahmed Bhanbhro, advocate.
6.
Crl. Accountability Appeal No.D-25 of 2021, Javed
Ali Jagirani.Through Mr. Mian Ali Ashfaq, advocate.
7.
Crl. Accountability Appeal No.D-26 of 2021, Qurban
Ali Abro.Through
Mr. MianAzhar Ahmed, advocate.
8.
Crl. Accountability Appeal No.D-27 of 2021,
Jahangir Channa, Tufail Ahmed Aheer and GhulamQadirAheer.
Through
Mr. Naushad Ali Tagar, advocate.
9.
Crl. Accountability Appeal No.D-31 of 2021, the
Chairman NAB. Mr.
Mujeeb-ur-RehmanSoomro, Special Prosecutor NAB Sukkur.Mr. Mumtaz Ali Gopang,
Assistant Attorney General
Dates
of hearing:22-02-2022, 01.03.2022, &
08-03-2022
Date
of decision:
J U D G M E N T.
Amjad Ali Sahito, J.
By this common judgment, we intend to dispose of the above captioned Crl.Accountability
Appeals filed by the appellants InayatullahAbro, Ghulam Abbas Shaikh, Ghulam
Mustafa Hulio, AsifSardarArain, ZamirHussainAbro, Javed Ali Jagirani, Qurban
Ali Abro, Jahangir Chann, Tufail Ahmed Aheer and GhulamQadirAheer against the
Judgment dated 27-02-2021 whereby
they have been convicted and sentenced by the Accountability Court, Sukkur in
Reference No.08/2016“Re. The State Vs. AsifSardarArain& others” as under:-
“Accused
AsifSardarArain, Ghulam Mustafa Hulio, ZamirHussainAbro, Javed Ali Jagirani,
Qurban Ali Abro, InayatullaAbro, Ghulam Abbas Shaikh, Tufail Ahmed,
GhulamQadirAheer, GhulamQadirButto and Jahangir Channa are liable to be
convicted for having committed the offence of corruption and corrupt practices
as defined u/s 9 (a) (iii), (iv), (vi) & (xii) of National Accountability Ordinance
(NAO), 1999 punishable Under Section 10 (a) of the said Ordinance. Accused AsifSardarArain convicted and sentenced
Under Section 265-H(ii) Cr.P.Cto suffer R.I for 07 years and fine of
Rs.89,53,367/-. Accused Ghulam Mustafa
Hulioconvicted and sentenced Under Section 265-H(ii) Cr.P.C to suffer R.I
for 07 years and to pay fine of Rs. 27, 35,140/-. Accused ZamirHussainAbroconvicted and sentenced Under Section 265-H(ii)
Cr.P.C to suffer R.I for 07 years and to pay fine of Rs. 13,54,335/-. Accused Javed Ali Jagiraniconvicted and
sentenced Under Section 265-H(ii) Cr.P.C to suffer R.I for 07 years and to pay
fine of Rs.5,24,922/-. Accused InayatullahAbroconvicted
and sentenced Under Section 265-H(ii) Cr.P.C to suffer R.I for 07 years and to
pay fine of Rs.34,74,972/-. Accused QurbanAliAbroconvicted
and sentenced Under Section 265-H(ii) Cr.P.C to suffer R.I for 07 years and to
pay fine of Rs.1,61,37,886/-. Accused Ghulam
Abbas Shaikhconvicted and sentenced Under Section 265-H(ii) Cr.P.C to
suffer R.I for 07 years and to pay fine of Rs. 1,48,12,885/-. Accused GhulamQadirAheerconvicted and sentenced
Under Section 265-H(ii) Cr.P.C to suffer R.I for 07 years and to pay fine of
Rs. 6,35,577/-. Accused Tufail Ahmed
Ahmedconvicted and sentenced Under Section 265-H(ii) Cr.P.C to suffer R.I
for 07 years and to pay fine of Rs.4.58,981/-. Accused Jahangir Channaconvicted and sentenced Under Section 265-H(ii)
Cr.P.C to suffer R.I for 07 years and to pay fine of Rs.15,02,363/-. Accused GhulamQadir Bhutto convicted and
sentenced Under Section 265-H(ii) Cr.P.C to suffer R.I for 07 years and to pay
fine of Rs.58,97,686/-. The accused persons shall be entitled to the benefit of
section 382-B Cr.P.C. The fine shall be recoverable as arrears of land revenue
in terms of Section 33-E of National Accountability Ordinance 1999. In case of
default in payment of fine, they shall suffer further R.I for two years each.
The above named accused shall also disqualified in terms of Section 15 of
National Accountability Ordinance, 1999 for a period of ten years, to be
reckoned from the date of released after serving out the sentence awarded to
them and also from seeking or from being elected, chosen, appointed or
nominated as a member of representative of any public body or any statutory or
local authority or in service of Pakistan or any Province and also they shall
not be allowed to obtain any financial facility in form of loan or advances
from any financial institutions controlled by government for the period of ten
years. All the above named accused persons were present on bail,therefore, they
were taken into custody and remanded to Central Prison Sukkur along with
conviction warrants to serve out the sentences awarded to them. Their bail
bonds stand cancelled and surety discharged.
3. The relevant facts, as set out in
Reference No.08/2016, are that then than National Accountability Bureau (Sindh)
received a complaint against Officer/Officials of TMA Larkana and others on 15th
January 2013 from Asfar Ali Rahujo and other Staff of TMA, Larkana, regarding
embezzlement of funds of Larkana Municipal Corruption and illegal
appointments/recruitment in Larkana Municipal, Larkana. The National Accountability
Bureau (NAB) Sindh authorized the inquiry to vide Letter
No.231020-S/1/IW-2/CO-A/T-2/NAB Sindh/2014/873 dated 28 August 2014 and after
the establishment of NAB Sukkur, the same was transferred to NAB Sukkur for
want of jurisdiction. Subsequently, the inquiry was authorized to vide Letter
No.720059/IW/CO/NAB Sukkur/2015/1075 to Zufliqar Ali Shah I/O. During the inquiry,
Abdul Hameed, Munwar Ali Brohi, Abdul ZahirKakhti, M. AmeenShaikh, Haresh
Kumar, Zulfiquar Ali Bhutto, RiazHussain, Asif Ali Laghari, BarakatullahBughio,
M. YounisBrohi, M.BudhalAbro, Rasheed Ahmed offered for Voluntarily Return
which was accepted and approved by the competent authority. The investigation
was authorized to vide Letter No. 720059/IW/CO-A/T-2/NAB (SK)/2016/3891 dated
30 September 2016 to Zulfiqar Ali ShahI/O. The investigation report reveals
that being a voluminous and a separate case in itself a separate inquiry has
been ordered on 30th September 2016 on the allegation of illegal
appointments in Larkana Municipal Corporation and a fresh reference or
supplementary reference be filed after the completion of the investigation.
4.
All the accused persons being
officers/officials acted in furtherance of the conspiracy and in connivance
with each other misused their authorities and rendered undue benefit/favor to
accused No. 09 to 15 to gain benefits and willfully misappropriated the
government funds which was lawfully entrusted to them and also willfully failed
to exercise their authorities to prevent grant/renditions, therefore, all
accused dishonestly, fraudulently misappropriated the government funds and
converted to their own use the property lawfully entrusted to accused No. 01, 2
to 08 were willfully misappropriated by the accused No. 09 to 15 (including the
accused person who was discharged through PB). Which resulted from loss to the
government exchequer & gains occurred to the tune of Rs.6,45,07,116/-(Six
Crore Forty Five Lacs Seven Thousand One Hundred and sixteen). (Rs.1, 49,78,153/- ( One Crores Forty Nine
Lac Seventy Eight thousand One Hundred and Fifty-Three) out of total Rs.
7,94,85,269/- (Seven Crores Ninety Four Lac Eighty-Five Thousand, Two Hundred
and Sixty Nine) are recovered throughVR). Thus the accused have committed an
offence of corruption and corrupt practices as provided in Section 9 (a) (iii,
iv, vi &vii) of National AccountabilityOrdinance% scheduled thereto which
are punishable Under Section 10 of the said Ordinance.
5.
In compliance with Section 265-C,
Cr.P.C, a complete set of case papers was supplied to the accused persons. After
framing of the charge, one absconding accused AsifSardarArain surrendered
before the Trial Court after getting bail from this Court. The copies were
supplied to the accused vide plea at Ex. 19 and then amended charge was framed
against all accused persons.
7. During the trial, the prosecution examined/produced
30 witnesses, who had produced different documents in their evidence.Therefore,
the prosecution has closed its side. Then statements of accused u/s 342 Cr.P.C
were recorded, to which they have filed their written statement and claimed
their innocence. All accused except accused Ghulam Abbas Shaikh, did not examine
themselves on oath nor produced any witness in their defense.
8.
Accused Ghulam Abbas Shaikh examined
himself on oath at Ex. 78, he produced 28 photographs at Ex. 78/1, he produced a
statement along with the original officer order and death certificate at Ex.
78/2. He also examined DW/1 Javed Ali at Ex. 79 and DW/2 Muhammad Abdul Ghaffar
at Ex. 80, thereafter learned counsel for accused closed the side vide Ex. 81.
9. The learned Trial Court, after hearing
learned counsel for the parties and appraisal of the evidence, convicted and
sentenced the appellants/accused named above vide judgment dated 27-02-2021, which is impugned by them
before this Court by way of filing instant Appeals.
10. Learned counsel for appellants Ghulam Abbas
Shaikh, Ghulam Mustafa Hulio, AsifSardarArain,ZamirHussainAbro and Javed Ali
Jagirani argued that appellants are innocents and have falsely been implicated
in this Reference; that the NAB Sukkur filed Reference before the learned
Accountability Court Sukkur. The prosecution produced as many as 30 witnesses in support of
their case; that the witness has failed to submit any law
regulating the publication of NITs through the information department; that the Procurement is made under Sindh Public
Procurement Act 2009 & The Sindh Public Procurement Rules 2010. The
SPPRA 2009 being special law overrides other laws. Rule 17 of the SPPRA 2010
provides for publication of NITs in three leading newspapers in case of
procurements exceeding one million rupees. There is no mention of routing
the advertisement through the information department.
The prosecution has failed to establish any other anomaly in the tendering process. Therefore this
allegation does not find legal support and stands not proved. (b)FAKE
QUOTATIONS: the prosecution has alleged that the electric
material was purchased through fake quotations. The material was not supplied. The prosecution has not examined any witness that the Local
Councils cannot execute works through quotations. Law itself provides a
mechanism for execution of works,
Rule 16 of SPPRA Rules 2010 provide for an alternate method of procurement, Rule 16
(a) provides for the request for quotations & Rule 16 (b) provides for direct contracting, the prosecution
has failed to establish that any quotation work exceeded the prescribed limit
of Rs; 100,000/00. The required
electric material even could be purchased through direct contracting.
Section 77 of the Sindh Local Government Act 2013 also provides a
mechanism for contracts through quotations. The prosecution in
support of fake quotations examined PW 2 Asadullah, PW 5 AltafHussain, PW7
ManzoorHussain& PW 8 ZameerHussain who deposed that the material
was purchased but in a very low quantity. However, no record in support of
the allegations was produced. PW 8 ZameerHussain admits that the life of
electric material was one day, ten days or a month. It is admitted by
the prosecution witnesses namely Manzoor Ali, ZamirHussain employees of
LMC that material worth Rs 50,000/- to 60,000/- was installed per month,
and such material was provided to them by the accused Ghulam Abbas.The other prosecution witnesses namely Sheeraz
Ahmed (PW 20), Abdul Wahid (PW21), Mohammed Ali (PW 22) Fahad Ali (PW 23) admitted in their
evidence that they supplied electric material to LMC through accused
GhulamAbass which negates the version
of prosecution as developed in investigation report by. The IO
himself admits in evidence that there is no eye witness to say that no electric work was done at the site. Even there is neither any
technical assessment of the electric works carried out, nor any inspection
of the sites was done. The businessmen who appeared
as witnesses failed to produce the record of supply of material to LMC, which
infers that the best piece of evidence was withheld as it did not support
the prosecution case.Non Execution
of Coloring Work, The prosecution in support of the allegation examined chowkidarKhadimHussain (PW 3) who resides near
New Bus Terminal who deposed that no coloring work was done at a new bus
terminal in this regard no any
proof has been furnished by the prosecution regarding the posting of those
witnesses at New Bus Terminal, on the contrary Defense the photographs of the
terminal before and after coloring which clearly establish that coloring was done at the terminal, so also defense
witnesses were examined. Non Execution of Schemes: the
prosecution in support of this allegation got conducted a technical
assessment of the development schemes through experts ShoaibFarhanAbro (PW
13) and Inayatullah Bhutto. The other expert who jointly signed the
technical report was not examined for
reasons best known to the prosecution as such the best piece of
evidence was withheld giving an inference that the witness did not support
the prosecution case as envisaged
under section 179 (c) of the QSO 1984.
The evidence
of the technical expert is shabby and non-clear on all accounts that how he
calculated the liabilities against the executed schemes. The reliance cannot be safely placed upon his
evidence particularly when his co-expert
was not examined by the prosecution. The Audit of the Accounts: The Prosecution alleged that the bills paid to the contractors were not audited as required
under Sindh Local Councils Accounts Rules 1983. In support of the allegation,the prosecution examined PW27
Karim Bakhsh deposed that
all the bills were pre audited and rules were followed in payment of
bills. Rule 75 of the Accounts Rules 1983 provides for the responsibilities
of the officer of the Local Council
recording payment order and prosecution has failed to establish that any payment was made in
departure to the said rule. Rule 113 of the Account Rules 1983
provides for measurement of the woks executed at site and responsibility
of the concerned engineers.None of the appellants was posted as an Engineer nor any MB was recorded by
them. It is crystal clear from the
evidence on record that
prosecution has miserably
failed to establish a case beyond the shadow of a doubt, furthermore, the contracts undertaken by LMC are not covered
under section 33-B of the NAO, 1999, therefore, NAB was lacking jurisdiction to enter into an inquiry
of the matter.He further argued that
the prosecution has also failed to establish any monetary gains by
the accused/appellants
in absence of which the case for misuse
of authority cannot be established. It is therefore humbly prayed that appellants be acquitted of the
charge.
10. Mr. Mukesh Kumar G.Karara advocate for
appellant InayatullahAbro argued that the impugned judgment passed by the
learned Trial Court is based upon surmises and conjectures and has been passed
without applying the judicial mind, hence it is not sustainable in the eye of
law; that the impugned judgment is perverse and against the facts and
circumstances of the case and the same is illegal and unlawful according to
law; that learned Trial Court has failed to appreciate the factual and as well
as legal aspects of the case while passing the impugned judgment; that prosecution
has failed to produce any evidence against the appellant nor uttered a single
word in adversary against the appellants, thus the present case is without any
oral and documentary evidence against the appellants and material
contradictions in the oral and documentary evidence are available in the
prosecution case; that prosecution has examined as many as witnesses to prove
the charge against the appellants, but none of them appeared to be trustworthy
and reliable evidence;
11. Mr. Rana Abdul Marud advocate for appellantQurban
Ali Abro in Crl. Acctt; Appeal No.26 of 2021 argued that the impugned judgment
was passed based on presumption, surmises, conjectures and is contrary to
the evidence available on record, hence the learned trial court erred, both in
law and facts while penning down the impugned judgment, thus the same is liable to be set
aside by this Court and the appellant is entitled for acquittal; that the roads might have been affected by the rainfall from 2011 to 2016. In the aforesaid circumstances there may be
adverse effect on the roads; that None
of the contractors was present at the time of visit of the sites; that in the cities excavation remains in continuationfor the purpose of stretching gas, PTCL lines, etc;
that because of excavation the loss is caused to the drainage system and no memorandum wasprepared at any site while visiting; that they did not inquire and record any statement of any person from the vicinity regarding
the works that were not executed at all nor statement of Head Master of school and
Principal, where generators of low capacity than mentioned in the record were; that the sites were
not made part of the inspection proceedings and who are also directly affected from the
technical report prepared which is completely against the cardinal principle of
fair trial and due process of law; that the above highlighted facts regarding flaws and
defective inspection and another fact that the technical report prepared
by the expert PW-13 FarhanShoaib is based on assumptions. It is submitted that in the
number of cases including Anwar SaifUllah Khan and PirMazharUlHaqthe Honorable
Supreme Court observed that where the prosecution onus of proof by abusing
cogent, concrete, forth write evidence the presumption of the guilt; the question
of conviction would not arise. In this regard, reliance is placed on the
following judgments: PLD 2005 SC 63 PLD 2001 SC 607 PLD 1977 SC 515 PLD 2008 SC 166 2008 SCMR 1118 2014 SCMR 985 PLD 2002 Lahore 458 PLD 2001 Peshawar 80 PLD 2002
Lahore 233, PLD 2002 Peshawar 118;
12. Learned
counsel for the appellants Jahangir Channa submits that the appellant is
innocent has falsely been implicated in this Reference; that the appellant
being a Government contractor has performed his duty as per contract. He has
also added that Appellant GhulamQadir (Appeal No;27/2021) and appellant Tufail
Ahmed (Appeal No; 27/2021) applied for plea bargain during the pendency of the
appeals and the said application has been accepted/approved by the competent
authority, as such he does not press their appeals on merit and may be decided
in accordance with the law.
13. On the
other hand learned Special Prosecutor NAB argued that accused/appellants being,
Ex-Administrator/ Municipal Commissioner/Sub-Engineer in Larkana Municipal
Corporation (LMC) awarded Schemes and
released funds of the said schemes in which work was not executed or
substandard and low quality and due to his act loss to the national exchequer;
that the quotations issued by the accused/appellants were not in accordance
with law and no question put regarding the issuance of one N.I.T during his
period hence, the prosecution has fully established the case against the accused
person and no any illegality has been shown by appellant. He further argued
that as per Section 17(2) of SEPPRA rules, the advertisement in the newspaper
shall appear in at least three widely circulated leading dailies of English,
Urdu and Sindhi languages; that the appellants produced relevant portions of
laws in order to protect their illegal act by showing that the appellants have
adopted procedure and it is settled principal of law when the basic order is
illegal and structure build on illegal order having no value in the eye of law
as the appellants have not adopted legal procedure by publishing N.I.Ts in the
newspapers, hence, the procedural law produced by the appellants have not given
any benefit to the appellants; that the prosecution successfully proved its
case before the trial court and appellants have not pointed out any illegality
and irregularity in the judgment and all the documents were signed by officials
who responsible for there and contractors accused persons have also received
amount and the expert report which is clear shown that work executed by accused
persons is less than MBs; He further argued that Sindh Local Government
Ordinance (SLGO), 2013 was promulgated on 16-09-2013 is prospective in effect;
that there is sufficient documentary evidence which connect each accused with
commission of offence of corruption and corrupt practices, hence their appeal
may be dismissed and Cr. Acctt; appeal No 31 of 2021 may be allowed and the sentence
of the appellants may be enhanced upto 14 years.He relied upon the case of Oil and Gas Development Company LTD. Through
Manager (Pricing) Vs. Federal Board of revenue through Chairman and 2 others (2016 P T D 1675).
29. We have heard learned counsels for the
parties and have gone through the material available on record.
30. Admittedly
the entire investigation was conducted by the I.O of the case/NAB PW-30
Zulifiqar Ali Shah under repealed law Sindh Local Government Ordinance, 2001.
Such notification was published in the Sindh government Gazette on 15th
July 2011. (NO.PAS/Legis-B/2011- The Sindh (Repeal of the Sindh Local
Government Ordinance, 2001 and revival of The Sindh Local Government Ordinance,
1979) bill, 2011 having been passed on 13th July 2011 as an Act of
Legislature of Sindh.The I.O of the case did not bother to go through the
relevant laws. Unfortunately when the investigation was completed and Reference
was placed before the Board as per SOPs of NAB. No one has pointed out that the
investigation conducted by the I.O under the law has already been repealed and
allowed him to submit the reference. The complaint was received by the NAB
authorities on 19.12.2012. The Sindh Contract Rules 2001 have already been
repealed and do not exist at all. Sindh Local Government Contract Rules 2001
were made in exercise of the powers conferred under section 191, subsection (1)
of the Sindh Local Government Ordinance 2001, read with Item 6 of Vth Schedule
thereto by the Government of Sindh, the Sindh Local Government Ordinance 2001
has already been repealed after the promulgation of the Sindh (Repealed of the
Sindh Local Government Ordinance, 2001 and revival of the Sindh Local
Government Ordinance, 1979) Act, 2011. Currently, Sindh Local Government Act,
2013 is in the field. Further, all such purchases/procurements of Municipal
Councils are governed by Sindh Public Procurement Authority (SPPRA) Rules 2010, not the Contract
Rules 2001. Rule 90 of SPPRA Rules 2010 gives overriding effect to such Rules. Provisions
of these rules shall have overriding effect notwithstanding anything to the
contrary contained in any other Rules, regulations, Manuals, Instructions or
Orders issued by the Government from time to time concerning public
procurements. In cross-examination I.O/he admits that “It is correct to suggest that TAMs were functioning under SLGO 2001 at
the time of receipt of complaint”. “I cannot say that SPPRA Rules are
applicable from the year 2004 and onward…. There is a difference in larkana
Municipal Corporation and taluka Municipal Administration. The both viz.
Larkana Municipal Corporation and Taluka Municipal Administration are working
under Sindh Local Government Ordinance…. PW/27KarimBux Assistant Director
Local Government admits that “It is correct
to suggest that Sindh Local Government Ordinance (SLGO) 2001 was repealed in
the year 2011….It is correct to suggest that rules framed under SLGO 2001 also
became redundant in the year 2011. It is correct to suggest that at the time of
intimation of investigation SLGO, 2001 and its rules were not in field. It is
correct to suggest that purchasing on the part of the department was taken
place in the light of SPPRA Rules 2010 and based on contract Rules. From
above it is clear that the Sindh Local Government Ordinance has already been
repealed.Even then we have to see whether the case has been made out against
the appellants or not. It is a settled principle of law that while deciding the
case, the technicalities can be overlooked.
22First of all we will discuss the Crl.
Accountability Appeal No.D-25 of 2021 of Administrator/Deputy Commissioner Javed Ali Jagirani as neither he was an employee of Municipal Corporation Larkana nor
posted as Municipal Commissioner or Mayor but after the dissolution of the Local
Government, he was given charge of Administrator, at that time the petitioner
was posted/working as Deputy Commissioner, Larkana. The allegation against the
petitioner was that during the posting from 1st January 2015 to 28thAugust
2016 in connivance with accused No.8 (Ghulam Abbas Shaikh) Ex-Store Purchase
Officer, K.K. Contractor and Abdul Hameed Ex- Municipal Commissioner and Munwar
Ali Brohi were involved in the misuse of authority and misappropriation of
funds by issuing 69 fake quotations for supply of electric material in
connivance with the above accused. His liability and gain were onlyRs.5,24,922/-. On the above
allegations, the charge was framed and in the judgment, the point for the
determination of the case was framed and in point No.2 it was observed that
“Whether the accused Javed Ali Jagirani and other accused persons by misusing
their authorities approved fake quotations containing fake bills managed by the
accused Ghulam Abbas Shaikh, Store Purchase Officer for awarding contracts of
supply of electric material etc. From the perusal of the Sindh Local Government
Act, 2013 (hereinafter referred to as ‘Act of 2013’), no definition of
Administrator has been provided nor any job description has been given. PW-27
KarimBuxAssistant Director, Local Fund Audit Department Larkana deposed that
powers of the Administrator have been defined in Sections 79 and 80 of the Act,
2013. Section 79 of the Act, 2013 reads as under:-
79. Executive Powers.- (1) The executive powers of a Council
shall extend to the doing of all acts necessary for the due discharge of its
functions under this Act.
(2) Save as otherwise provided in this Act
and the rules, the executive powers of a Council shall vest in and be exercised
by its Mayor or Chairman, as the case may be, either directly or through any
person authorized by him in accordance with the rules.
(3) All acts of a Council shall be
expressed to be taken in the name of the Council and be authenticated in the prescribed
manner.
Whereas section 80 provides the powers of
Mayor or Chairman, which reads as follow:-
80. Powers of Mayor or Chairman.- (1) The Mayor or Chairman, as the case may
be, shall –
(a) unless prevented by reasonable cause,
preside at all meetings of the Council, and regulate the conduct of business at
such meetings in accordance with rules;
(b) watch
over the financial and executive administration of the Council and perform such
executive functions as are assigned to him by or under this Act;
(c) exercise supervision and control over
the acts and proceedings of all employees of the Council and dispose of all
questions relating to their service, pay, privileges and allowances in
accordance with the rules; provided that service matters of the members of the
Sindh Councils Unified Grades shall be referred to Government;
(d) have power in cases of emergency to
direct the execution or stoppage of any work or the doing of any act which
requires the sanction of Government or the Council, and the immediate execution
or stoppage or doing of which is, in his opinion, necessary for the service or
safety of the public and the action so taken shall forthwith be reported to
Government or, as the case may be, to the Council at its next meeting; provided
that he shall not act under this clause in contravention of any provision of
this Act or order of the Council or Government.
(2) When the Mayor or Chairman by reason of
absence from Pakistan or any other cause, is unable to exercise his powers and
perform his functions, the Deputy Mayor or, as the case may be, Vice Chairman,
shall exercise powers and perform functions of the Mayor or, as the case may
be, Chairman:
Provided that in the absence of Mayor, Deputy
Mayor, Chairman or Vice-Chairman, the Government may by Notification entrust
the duties of the Mayor, Deputy Mayor, Chairman or Vice-Chairman as the case
may be to some other member.
From the above, it is clear
that only the Council and Mayor or Chairman can use the powers. The PW-27KarimBux
Assistant Director Local Fund Audit Department, Larkana and PW-30 I.O of the
case Zulifquar Ali Shah failed to produce any notification, which could suggest
that all the powers of the Council (Council means a Corporation, Municipal
Committee, Town Committee, District Council or Union Council, as the case may
be) Mayor or Chairman has been delegated to the Administrator. Further, Sindh
Local Councils (Accounts) Rules, 1983 provides the definition of “Accounts
Officer” which means the Accounts Officer of Council and includes the Chief
Accounts Officer, Senior Accounts Officer, Assistant Accounts Officer and an
Accountant responsible for up-keep and correct maintenance of accounts of a
Council. It is worth mentioning here that Rules 70 and 95 of the Sindh Local
Councils (Accounts) Rules, 1983 do not concern the roles and responsibilities
of an Administrator. These Rules define the roles and responsibilities of the
official/officer relating to the Accounts Department of the Local Councils as
is clear from the name and nomenclature of the rules. The Rule 70 ibid provides
that;
Preparation
and issue of cheques.
70. (1) Cheques shall be prepared by the Chief
Accounts Officer after such scrutiny and examination by him of the bill as may
seem necessary to him and after passing of the bill by the Auditor of the Local
Fund Audit Department where day-to-day audit is in force.
(2) The Chief Accounts Officer
shall scrutinize the bill or voucher with reference to rules and orders in
force and if claim is admissible and the authority good i.e. if the charge has
been sanctioned by a competent authority according to rules, and the signature
be true and in order, will attach a face sheet to the bill or voucher in Form
No.61 and then pass it on to the Chief Executive, Town Officer or the Secretary
as the case may be or to any officer authorized to record “Payment Order” who
after recording the same return the bill or voucher to the said Accounts
Officer for further action.
(3) In a Council where Day-to-Day
audit of the Local Fund Audit Department is in force, the Chief Accounts
Officer shall cause the bills to be submitted to the Auditor for pre-audit and
passing of the bills. The Chief Accounts Officer shall attend to all pre-audit
objections and arrange to meet the same most expeditiously. On the return of
the bill duly passed by the Auditor, the Chief Accounts Officer shall proceed
to issue cheque for the amount of the bill or voucher less adjustments, if any.
In councils where there is no Day-to-Day audit of the Local Fund Audit Department,
the Chief Accounts Officer shall proceed to issue cheque soon after Payment
order has been recorded by the Chief Executive or his authorized delegate.
Simultaneously with the preparation of the cheque, its entry shall be made in
the cheque Register in Form No.62 forwarded to the officers authorized to sign
cheques of the Council for payment, provided that in Councils where Day-to-Day
audit of the Local Fund Audit Department is in force both the Chief Executive,
Town Officer or Secretary as the case may be shall sign the cheques provided
the Mayor or Chairman may assign the duty of signing the cheque on his behalf
to an officer not below Grade-16.
(4) …….(5)
…….(6) …….(7) …….(8) …….(9) …….
(10) ….
37. In the instant case alleged 69 quotations have been duly
processed as per rules and procedure by respective branches and duly verified
by all those officers duly audited by Audit Officer and finally approved by the
Administrator. The PW-27 KarimBux, Assistant Director, Local Fund Audit
Department Larkana admits in his cross-examination that “It is correct to
suggest that there is no notification of the Provincial Government whereby the
administrators of the council were assigned power of Chairman and Mayor are
defined… It is correct to suggest that there is a pre-audit fund provision in
the Local Government Act, 2013. Pre-Audit is conducted by the local fund audit
department. It is correct to suggest
that whenever any bills is tabled, it is pre-audited as to whether the same was
prepared in accordance with rule or not. I pre-audited all the bills came
before me pertaining to the case during my period. I pre-audited the bills on
the basis that all the bills were processed in accordance with law. I found
that the rules enforced in that time were properly applied.It is correct to
suggest that amounts were disbursed from proper head. It is correct to suggest
that there is a system of post audit. I did not raise any objection on the
bills during the course of pre-audit. I did not find fault with the documents
during pre-audit.” During his cross-examination, he has also deposed
that “It is correct to suggest that maximum period of my service is in
Larkana. It is correct to suggest that I have been residing in Larkana since my
birth. It is correct to suggest that every vouchers of purchasing is presented
before me, which is checked. Voucher is signed by the purchaser. No complaint
from Larkana Municipal Corporation was received to me that any officer objected
that the voucher or bill was not signed by him…. It is correct to suggest that
cheque is not issued without pre-audit… It is correct to suggest that technical
checking and verification is function of engineering branch. It is correct to suggest that certificate
of “work done” is also issued by engineering branch.It is correct to suggest
that administrator is not concerned with technical checking, verification and
issuance of work done certificate…It is correct to suggest that under sections
79 and 80, administrator is not bound to check the work physically.”…It is
correct to suggest that most of the cheques in the present case were issued on
my pre-audit. It is correct to suggest that having completed all the
documentation, I allowed the issuance of cheques. It is correct to suggest that
Administrator was bound to issue the cheque after my pre-audit.
22.
During investigation PWs ZameerHussain&ManzoorHussain were called by
the I.O of the case, both the PWs informed the I.O that at the start of the
year 2015, as Deputy Commissioner Larkana got the charge of Administrator
Larkana, he orderedAsad Ali Kalhoro, working as Assistant in the office of the
Commissioner Larkana get repaired/installed the electric material at various
locations. Thereafter both the PWs installed street lights at various locations
of Larkana under the supervision of Asad Ali Kalhoro. This was the tenure of
the Appellant Javed Ali and the allegation against him was that he has issued
fake quotations. Both the PWs confirm that the lights were get
repaired/installed. PW-2AsadullahKalhoro has supported the version of the above-named
witness and deposed that he was working as Assistant in the officer of
Assistant Commissioner, Larkana, he has deposed that “I/O NAB inquired from me regarding the work installation of electricity
lights in the Main Roads, Chowk and flyovers… This work was carried out under
my monitoring from January, February, March 2015 and some of the days of
June/July, 2015 … I carried out the monitoring of the work of Installation of
electricity lights upon the orders of the then Assistant Commissioner, Revenue,
Larkana. The electrician inchargeManzoorOdho, ZamirMemon and Imran Umrani were
also with me…..The purchase of the electricity lights materials were made from
Al-Noor Electronics, Cyber Electronics and Wazir Electronics for the three months
which I stated… The Municipal authorities were making payments of the same. In
all about three months time the work was completed. He produced the seizure
memo along with documents in all 55 leaves at Ex. 37/1. In cross-examination,
he admits that “purchasing of the
material was done from the shopkeeper…… The bills were taken in the name of
Municipal Corporation, Larkana….Payment was given by Municipal Corporation…It
is incorrect to suggest that most of the bills that I have produced in the
evidence, are in the name of Assistant Commissioner/SDM, Larkana….Payment was
directly issued to the shopkeeper.A bare perusal of documents/vouchers
produced by PW/2 Asadullah, it appears that the amount charged in bills was
less than one lac and were not fake ones. But unfortunately, a senior
officer/Deputy Commissioner who had ordered for the repair and installation of
street lights were booked in this case, due to lake of knowledge of the I.O.
Even he/I.O had not bothered to go through the SEPRA laws to confirm the
procedure for tendering/quotation processes.Law itself provided a mechanism for
execution of works, Rule 16 of SPPRA Rules 2010 provide for alternate methods
of procurement, Rule 16 (a) provides for the request for quotations & Rule
16 (b) provides for direct contracting.Furthermore, the prosecution has failed
to establish that any quotation work exceeded the proscribed limit of one
hundred thousand rupees. The required electric material even could be purchased
through direct contracting. Section 77 of the Sindh Local Government Act, 2013
also provides a mechanism for contracts through quotations.Further, all such
purchases/procurements of Municipal Councils are governed by Sindh Public
Procurement Authority (SPPRA) Rules 2010, not the Contract Rules 2001. Rule 90
of SPPRA Rules 2010 gives overriding effect to such Rules. PW/27KarimBux Assistant Director
Local Government admits that “It is
correct to suggest that Sindh Local Government Ordinance (SLGO) 2001 was
repealed in the year 2011….It is correct to suggest that rules framed under
SLGO 2001 also became redundant in the year 2011. It is correct to suggest that
at the time of intimation of investigation SLGO, 2001 and its rules were not in
field. It is correct to suggest that purchasing on the part of the department
was taken place in the light of SPPRA Rules 2010 and on the basis of contract
Rules, appellant Javed Ali Jagirani was booked and the charge was framed
against him showing 69 quotations as fake due to violation of Contract Rules
2001, which were already repleaded.PW/27 KarimBux, Additional Director
Local Fund Audit (engaged by NAB for expert opinion) has also admitted in the cross
that “ It is correct to suggest that
Municipal Services are falling within essential services……It is correct to
suggest that in case of an emergency some formalities may be avoided for
essential services …..It is correct to suggest that works falling within the ambit
of municipal councils are required to be done on day by day basis…… It is
correct to suggest that budget of Municipal are released on monthly basis…… It
is correct to suggest that expenses of day to day basis work are also occurring
from monthly release. Rule 2 (11) of the Sindh local Councils (Accounts
Rules 1983 clearly defines the office of Chief Accounts Officers. The
provisions of such Rules clearly show that the Accounts officer is the Chief
accounts Officer of any Local Council. Rule 2 (11) of the Sindh Local Councils
(Accounts) Rules 1983 provided that Chief AccountsOfficer means the Accounts
Officer responsible for maintenance of the consolidated accounts of the
council. Learned counsel for the appellant claimed that all the alleged 69
quotations have been duly processed as per rules and procedures by respective
branches and duly verified by all those officers, duly audited by Audit Officer
and then finally approved by the Administrator, hence those are not fake
quotations. All such quotations are finally put up before the appellant as an
Administrator of the Municipal Corporation after processing and certificates by
different branches duly certified/processed by more than 8 to 9
officers/officials. It is the responsibility of the Engineering branch to
physically check the installation of lights. It is the responsibility of the Audit
and Accounts Branch to verify bills. This fact has also been endorsed by PW/27
KarimBux who admitted during cross-examination that “It is correct that there is a pre-audit provisions in the local
Government Act 2013….Pre-audit is conducted by Local Fund Audit Department…..
It is correct to suggest that whenever any bills is tabled, it is pre-audited
as to whether the same was prepared in accordance with rule of not. I pre-audited
all the bills came before me pertaining to the case during my period…It
pre-audited the bills on the basis that all the bills were processed in
accordance with law….I found that the
rules enforced in that time were properly applied”
38.
PW/7 Manzoor Ali deposed that I.O NAB showed him bills of electricity
material for the year 2011 to 2014. It means if any corruption is made in those
years, appellant Javed Ahmed Jagiraniwas not posted as Deputy Commissioner nor
having additional charge of Administrator.
39. The west Pakistan Municipal Committees Fund (Audit) Rules 1964
clearly defines the function of the Local Fund Audit section to ensure and verify
that all such financial papers including quotations papers are prepared following
the law and as per budget and as per sanction. Rule 6 of the said rules defines
principles to guide the audit authority according to which all cases of
embezzlement, misappropriation, fraud, loss, wastage or misapplication of municipal
fund or property shall be brought to light. Rule 7 makes audit responsible that
all expenditures and disbursements are authorized, vouched and correctly
classified. Rule 8 defines that audit shall verify that the provisions of rules
have been duly observed that the expenditure is in accordance with the sanction
properly accorded and is incurred by an officer competent to incur it. There is
no objection to expenditure from the audit point of view. Further as provided
under Rule 23 Sub Rule 4 of Sindh Rules of Business 1986, all the 69 quotations
approved by the Administrator/(appellant) after proper checking and
verification conducted independently each time by officers of next below ranks
of the approving authority in the hierarchy of officers approving the
quotations. All such 69 quotations were approved by the Administrator as per
provisions of Rule 23 (4) Sindh Rules of Business 1986 after proper checking
and verification conducted independently each time by an officer of next below
ranks of the approving authority. For the sake of brevity Rule, 23 (4) of Sindh
Rules of Business 1986 is reproduced as under:-
“Rule 23.
“(iv) If any order
contravenes a law, rule or policy decision, it shall be the duty of the next
below officer to point it out to the authority passing the order”.
22. It has been brought on the record that if
any material was purchased in respect of the quotations a certificate will be
issued concerning electric materials.For the sake of convenience, we would like
to reproduce the same as under:-
CERTIFICATE
1. Certified
that claim has been checked with reference to be all rules and orders involve
any claim admitted according.
2. Certified
that I have satisfied that the expenditure has been sanctioned by the
competent.
3. Certified
that the expenditure has been charged to the correct budget head i.e. by
Head/SubHead unit and subsidiary unit.
4. Certified
that all recoveries which to be made have been made in this bill.
5. Certified
that amount claimed in this bill have not been drawn before.
Sd/- Sd/- Sd/-
Senior
Accountant.Accounts Superintendent. Superintendent Budget.
Passed for payment of Rs.50000
Rupees Fifty thousand only.
Sd/- Sd/-
Accounts
Officer Municipal
Commissioner
Larkano
Municipal Corporation LarkanoMunicipal Corporation
Sd/-
Administrator
Larkano
Municipal Corporation
Larkano.
22.Learned Counsel for the appellant
submits that in all bills passed for payment, such type of certificate is being
signed by six persons i.e. Senior Accountant, Accounts Superintendent,
Superintendent Budget, Accounts Officer, Municipal Commissioner and in last the
Administrator. It is relevant to mention here that under the relevant
provisions as quoted above after the methodical scrutiny of the relevant
Account Officers and audit by the Auditor of the Local Fund Audit Department,
the Administrator finally sign the bills. Surprisingly, if any misappropriation
of funds has been made, the concerned officers who checked/audited the subject
bills,have not been made accused in the instant reference by the NAB
authorities. In the circumstances, to prove the charge of misuse of authority, at
least two basic ingredients i.e. Mens Rea
and Actus Reus of crime have to be
necessarily established and in case any one of them is found missing, the
offence is not made out as it is a general principle in criminal law that for a
person's liability to be established it must be shown that the defendant possessed
the necessary Mens Rea at the time
the Actus Reus was committed. The Actus Reus is the amount to be a crime
only when it is accompanied by the appropriate Mens Rea. To cause an Actus
Reus without the requisite Mens Rea
is not a crime but maybe an innocent act.22.
In the light of facts and circumstances of the present case andthe
evidence brought on record, we have not been able to find out the basic
elements of an offence of corruption and corrupt practices in the transaction
in question within the meanings of section 9(a)(vi) read with section 10(a) of
the NAB Ordinance, 1999
22. The plain reading of Section 9(a)(vi) read
with section 10(a) of the NAB Ordinance, 1999would show that without discharge
of initial burden by the prosecution, the presumption of guilt cannot be raised
and trial of a person on vague allegation is a misuse of the process of law and
Courts. The prosecution must discharge its duty fairly, justly and in
accordance with law and since any lapse of prosecuting agency in respect of the
right and liabilities of a person facing prosecution, is not condonable,
therefore, the Courts must be vigilant about the right of such a person to save
him from the incarceration of unjustified prosecution at the cost of his honour
and reputation. In Islam right to honour was declared a sacred right, which
means not only the violation of such right is punishable and to be compensated
but the violation is also to be prevented and thus on one hand protection is to
be provided to the victim and on the other hand, one who violates such right is
made accountable. In criminal administration of justice, this is a common
principle that in case of liability with a penal or quasi penal consequence,
the oppressive use of law in respect of honour and reputation of a person is
not justified and denial of safeguard of just and fair treatment must be
prevented in the larger interest of justice which is the most fundamental of
all the rights in Islam and cannot be abridged by any limitation. The NAB
Ordinance is a special law and the use of this law in an oppressive manner must
be tested on the touchstone of the fundamental right of a person as guaranteed
under the Constitution. Since the Courts are under a legal duty to defend,
preserve and enforce the rights of people and their Constitutional guarantees,
therefore, notwithstanding the protection provided to the NAB authorities under
the law in respect of their functions, the use of power by them in an unbridled
manner for the prosecution of innocent persons in disregard to their
constitutional guarantees, rights, liabilities and duties must not be allowed
and Courts must prevent such oppressive use of penal law through judicial
determination. Reliance is placed on the case of “The State & other v. M.
IDREES GHAURI and others (2008 SCMR 1118)”.
22. There is no evidence
that the appellant made any financial gain or received any favour on account of
the above quotations. The prosecution failed to establish any nexus of
appellant JaveedAli with co-accused persons. It was the duty of the
investigating officer to bring on record evidence showing the connivance of the
accused with co-accused persons. Such kind of evidence was lacking, which had
made the case of prosecution doubtful.
43. It is a settled principle of law that if there
is a circumstance that creates reasonable doubt in a prudent mind about the
guilt of the accused, then the accused would be entitled to the benefit of such
doubt, not as a matter of grace and concession but as a matter of right. In this respect, reliance can be placed upon the case of MOHAMMAD
MANSHA v. The STATE (2018 SCMR 772), in which the Hon'ble Supreme Court of
Pakistan has held as under:-
4. “Needless to mention that while giving the
benefit of doubt to an accused it is not necessary that there should be many
circumstances creating doubt. If there is a circumstance which creates
reasonable doubt in a prudent mind about the guilt of the accused, then the
accused would be entitled to the benefit
of such doubt, not as a matter of grace and concession, but as a matter of
right. It is based on the maxim, “it is
better that ten guilty persons be acquitted rather than one innocent person be
convicted”. Reliance in this behalf can be made upon the cases of Tariq Parvez
v. The State (1995 SCMR 1345), GhulamQadir and 2 others v.The State (2008 SCMR
1221), Mohammad Akram v, The State (2009 SCMR 230) and Mohammad Zaman v.The
State (2014 SCMR 749).”
44. In view of the above the prosecution has
failed to discharge its onus of proving the guilt of the appellant/petitioner
beyond a shadow of reasonable doubt. Resultantly Criminal Accountability appeal No. 25 of 2021
isallowed, the convictions and
sentences recorded by the learned Trial Court vide judgment dated 27.02.2021 are
hereby setaside to the extent of Appellant Javed
Ali Jageerani and he isacquitted of
the charge by extending the benefit of the doubt. The appellant is on bail, his
bail bonds stand cancelled and surety is discharged. The Office is directed to
return the surety papers to the surety after proper verification and
identification.
40. Reverting
to the case of appellants AsifSardarArain,
Ghulam Mustafa Hulio, ZamirHussainAbro, InayatullahAbro, Qurban Ali Abro,
Ghulam Abbas Shaikh Jahangir Channa and GhulamQadir Bhutto. The appellants
stood charged for the offence of corruption and corrupt practices, regarding
embezzlement of funds of Larkana Municipal Corporation hereinafter referred as (LMC) on account of issuance of fake
NITs, execution of substandard work and no-execution of work and supply of
material through fake quotations, thus all the accused persons nominated in the
reference cause loss of Rs. 7,97,85,269/-. 22. In support of the allegation,
the prosecution has examined PW/1 Aziz Ahmed Deputy Director Information
Department Karachi, who has introduceda new definition of the fake NITs and deposed thatin all 7 NITs were
published in newspapers out of which only one NIT was published through the information
department, while the 6 other NITs were not routed from his office which on the
contrary to violation of SEPRA Rules, hence they are fake one. However, this
witness has failed to submit any law regulating the publication of NITs through
the information department. The procurement was made under Sindh Public Procurement
Act 2009(SPPRA Act, 2009),& the
Sindh Public Procurement Rules 2010(SPPRA, Rules 2010). The Sindh
Public Procurement Act, 2009 isa special law that overrides other laws. Rule 17
of SPPRA Rules2010 provides for
publication of NITs in three leading newspapers in case of procurements
exceeding one million rupees. There is no mention of routing the advertisement
through the information department. It is appropriate to reproduce the relevant
portion of Rule 17 which reads as under:-
“17.
Methods of Notification and Advertisement. –(1) Procurements over one
hundred thousand rupees and up to one million rupees shall be advertised by
timely notifications on the Authority’s website and may in print medical in the
manner and format prescribed in these rules.
*[(1A) All procurement opportunities
over one million rupees shall be advertised on the Authority’s website as well
as in the newspapers as prescribed].
(2) The
advertisement in the newspapers shall appear in at least three widely
circulated leading dailies of English, Urdu and Sindhi languages.
(3) The notice inviting tender shall contain the following information:
(a) name, postal address, telephone number(s), fax number, e-mail address (if available) of the procuring agency;
(b) Purpose
and scope of the project;
(c) schedule of availability of bidding documents, submission and openingof bids, mentioning place from where bidding documents would be issued, submittedand would be opened;
(d) amountand manner of payment of tender fee and bid
security;
(e) anyother information that the procuring agency may
deemappropriate
to disseminate at this stage.
(4) In cases, the procuring agency has its own website; it shall also post all advertisements concerning procurement
on that website as well. :
(5) A procuring
agency utilizing electronic media shall ensure that the information posted on the website contains all the information mentioned
in sub-rule (3) above.
(6) In the case of international
competitive bidding, the notice shall be advertised in two widely circulated
local English language newspapersin accordance with sub-rules (1) (3)
(4) and (5)
above, and shall also be posted in the English language on an internationally known website dedicated
for the particular goods, works of services, or any widely
circulated English international newspaper. Law itself provided a
mechanism for execution of works, Rule 16 of SPPRA Rules 2010 provide for an alternate
method of procurement, Rule 16 (a) provides for the request for quotations
& Rule 16 (b) provides for direct contracting.
31.
The Sindh Contract Rules 2001 have already been repealed and do not exist at
all. Sindh Local Government Contract Rules 2001 were made in exercise of the
powers conferred under section 191, subsection (1) of the Sindh Local
Government Ordinance 2001, read with Item 6 of Vth Schedule thereto by the
Government of Sindh, the Sindh Local Government Ordinance 2001 has already been
repealed after the promulgation of the Sindh (Repealed of the Sindh Local
Government Ordinance, 2001 and revival of the Sindh Local Government Ordinance,
1979) Act, 2011. Currently, Sindh Local Government Act, 2013 is in the field. Further,
all such purchases/procurements of Municipal Councils are governed by Sindh
Public Procurement Authority (SPPRA) Rules 2010, not the Contract Rules 2001. Rule
90 of SPPRA Rules 2010 gives overriding effect to such Rules.
32. Provisions of these rules shall have
overriding effect notwithstanding anything to the contrary contained in any
other Rules, regulations, Manuals, Instructions or Orders issued by the
Government from time to time concerning public procurements. PW/1 Aziz Ahmed
Hakro, who was Deputy Director, Information Department, Karachi admitted in his
cross-examination that “The NITs were
published in Daily AwamiAwaz, Tameer-e-Sidh, Express, Anjam, Barkha and Larkana
Times newspapers…….All the aforesaid newspapers are certified…….It is correct
to suggest that provisions/sections of any law/ordinance/rule has not been
mentioned in my statement…..It is correct to suggest that Procurement was of
local level……It is correct to suggest that SPPRA Act, 2010 is special law
whereas information ordinance is an ordinary law……It is correct to suggest that
publication according to SPPRA rules is directory/discretionary in nature…..I
cannot say as to whether proper NITs were published and competition bids were
observed…..It is correct to suggest that newspapers daily express in Urdu and
AwamiAwaz in Sindhi, Tameer-e-Sindh and others mentioned in the case are
popular newspapers….It is correct to suggest that publications were in
accordance with law…..I have been serving as government employee for about 26
years… I have served in information department for 14 years… I have not gone
through SPPRA Rules…. It is correct to suggest that some department tenders are
invited and in some departments, quotations are invited…Voluntarily says that
the limit of quotations is up to 25 thousand. It is strange to note here
that prosecution/NAB has produced a witness who was working as Deputy Director,
Information Department, but has said that he has not gone through the SPPRA Rules.From
the above, it is clear that the NITs were issued/published by following the
Sindh Public Procurement Rule, 2010 and other relevant laws discussed above.Now question before us whether the practicallydevelopment
and non-development works were doneat the sitesas per NITs published in
newspapers orthrough quotations or not?
33. In support of the above allegations,the prosecution has examined
PW/13 Shoaib Farman, XEN, Pak-PWD, Sukkur(hereinafter
referredto as the expert).Joint visits of sites were carried out by I/O
Zulfiquar Ali Shah I.O NABSukkur, ShoaibFarhan, Assistant Engineer
Pak:PWDSukkur, Inayatullah Bhutto, Sub Engineer, Pak PWD, Sukkur, Qurban Ali
Abro, T.O (infra) TMA, Larkana, InayatullahAbro, Sub-Engineer, TMA Larkana and
AltafHussainAbbasi Clerk of TMA Larkana. The TOR of the inquiry was, to assist
technically I/O of NABSukkurconcerning subject enquiry(1) physical
inspections/site surveys, (2) measurement verifications of sites/schemes, (3) checking
of thickness/quantity of sites/schemes by simple/hand feet tests,(4) scrutiny
of technical record sealed by NAB Sukkur, (5) On basis of the statements of
resident and (6)based onthe statement of Qurban Ali Abro. T.O (Infra) TMA
Larkana.Through evidence of the Expert
it has been brought on the record that in February and June 2016, different
schemes were visited with Inayatullah Bhutto with above name officials. They
have visited 44 schemes out of 44 schemes, they checked 34 schemes, their
measurements, quality and quantity. Whereas 10 schemes were not executed at
all. I.O NAB asked Qurban Ali Abro, the then Sub-Engineer, TMA Larkana to call
the contractors of those 10 schemes who had not executed work at all on which
Qurban Ali Abro replied that contractors disappear because of fear of NAB. As
such the amount of those 10 schemes was embezzled. He produced a seizure memo
at Ex. 48/1 contains 38 leaves. The total amount of 44 schemes was 89.0 million
and they found embezzlement of Rs. 35.5 million. The quantity of work was found
less than MB at the site. Contractor/accused Muhammad Amin Shaikh was held
responsible for embezzlement of Rs. 75,3550/-. The same accused was also held
responsible for embezzlement of Rs. 2.6 million. In the scheme of serial No. 10
and 11 names of TO is Qurban Ali Abro and the name of SE is the same namely
Qurban Ali Abro. In scheme No. 45, TO (Taluka Infrastructure Officer/Town
Officer) is Qurban Ali Abro and the name of SE (Sub-Engineer) is
InayatullahAbro. In scheme 26 the contractor is Muhammad Amin Shaikh, whereas
TO/SE is Qurban Ali Abro and embezzlement in such scheme is Rs. 1,240,000/-. In
this way, the accused Qurban Ali Abro, InayatullahAbro, Contractor Mansoor
Ahmed Leghari, GhulamQadirAheer, Tufail Ahmed Aheer (now entered into PB)
YounisBrohi, contractor JahangeerChanna, Contractor RiazHussainLangah,
Contractor Asif Ali, contractor Muhammad Haneef/NazamuddinSolangi, contractor
Haresh Kumar, Pardeep Kumar, contractor FidaHussain, contractor
GhulamMurtazaShaikh, contractor GhulamQadir Bhutto, contractorImamuddin,
contractor Naseer Ahmed were involved in the embezzlement of Rs. 35.4 million.
We have also perused the record produced by the above-named witness, we are
shocked to see that no work was executed at sites and bills were claimed and if
any work was done at the sites which were executedless in quantity, hencethe
accused/appellants are responsible forthe misappropriation of Government funds.It
is surprising to note here that as per Scheme No.10 two 40 KV Generators had to
be provided to Government Pilot Higher Secondary School Larkanaand Government Girls Higher Secondary School
Larkana. Instead of providing two 40 KV generators, the contractor provided 12
KV Generators which was against the rules and violation of the contract and gave
loss to the government. The accused/appellants have taken the plea that due to
rain the roads have been affected. It’s true that due to rain roads can be
affected at least some sign of road and stone must be there, at the time of
site verification no sign of road or stones were there and in papers schemes
were shown completed.
22. The Rule 120 Sindh Local Councils (Accounts)
Rules, 1982 provides that in the issue of materials Every Officer recommending
payment on behalf of the council should satisfy himself that the work has been
actually done following the bill submitted for payment. He should inspect
personally all the works before recommending final payment and should check the
measurement made by his subordinate at least to the following extent and
certify as such on the measurement book and the bill.
(i) Assistant Engineer 50 percent.
(ii) Assistant Executive Engineer 10 percent.
(iii) Executive Engineer
Superintending
Engineer or, 10 percent
Chief Engineer in cases in which
he is the authority to sanction the Estimates technically 5 percent.
22. From the above rule, it is crystal clear that the Assistant
Engineer is responsible for 50 percent of work at the site, whereas Assistant
Executive Engineer is responsible for 10 percent, Executive Engineer,
Superintending Engineer 10 percent or, Chief Engineer in cases in which he is the
authority to sanction the Estimates technically for 5 percent. In the instant
case, 13 accused persons entered into VR and VR of 12 persons were accepted on
30th September 2016 while 1 VR offer of Abdul Sattar was applied by
Abdul GhaffarShaikh brother in law of the accused along with an affidavit, VR
application and 3 pay orders, all dated 30th September 2016, DD No.
00006823 of Rs. 800,000/-, DD No. 00006824 of Rs. 800,000/- & DD No.
00006825 of Rs. 764,204 & 2 post-datedcheques No. 11526338 & No. 11526337
of Rs. 2,294,668/- each was submitted. Therefore Competent Authority approved
VR conditionally and required endorsement of accused and verification of VR
application was formally approved and report submitted in the Court. (The table
is given below).
|
S.No. |
Name
of accused |
Designation |
Liability |
|
1. |
Abdul
Hameed |
Ex-Municipal
Commissioner |
298,145 |
|
2 |
Muwar
Ali Brohi |
Sub-Engineer |
298,145 |
|
3 |
Abdul
ZahirLakhti |
Sub-Engineer |
51,146 |
|
4. |
M.
AmeenShaikh |
Contractor
|
2,929,154 |
|
5. |
Haresh
Kumar |
Contractor |
172,629 |
|
6.
|
Zulfiquar
Ali Bhutto |
Contractor
|
1,996,293 |
|
7.
|
RiazHussain |
Contractor
|
177,843 |
|
8. |
Asif
Ali Laghari |
Contractor
|
110,321 |
|
9. |
BarkatullahBughio |
Contractor
|
238,086 |
|
10. |
M
YounisBrohi |
Contractor
|
1,170,5556 |
|
11. |
Abdul
SattarShaikh |
Contractor
& Junior Clerk (VR approved subject to verification by the jail
authorities) |
6,953,541 |
|
12.
|
Mu
BudhalAbro |
Sub-Engineer |
414,773 |
|
13. |
Rashid
Ahmed |
Contractor |
167,521 |
|
Total
|
14,978,153/- |
||
From
the above, it is clear that through VR the above named accused paida total
amount of Rs.14,978,153/- to NAB.
22. In support of the allegation leveled against
the above-named officers/officials the prosecution/NAB examined PW-3
KhadimHussain and PW-4 ParkashChandar both deposed that no coloring was made to
the new bus terminal Larkana. PW-3 admits in cross-examination that “It is incorrect to suggest that after vacation
of the new bus terminal building the building of the new bus terminal was
colored by the municipal Corporation, Larkana”. In this scheme,the loss was
causedby the exchequers Rs. 34,74.972
by appellant InyatuulahAbro and other accused persons who entered VR. (namelyM.AmmenShaikh.
M YounisBrohi, Haresh Kumar, M/S KK Contractors)
22. The prosecution also examined PW/5
AltafHussain, PW/6 Ahmed Bux and PW/7 Manzoor Ali provided a list of 134 schemes
before the I.O aboutthe year 2011,2012, and 2013. PW-7 ManzoorAli & 8 ZameerHussain deposed that the I.O
NAB showed them the bills of electric Material for the years from 2011 to 2014
those were containing their forge signature.
41. From the evidence of the witnesses it’s clear
that the electric items consumed in LMC for an amount of Rs. 50,000/ to Rs.
60,000/thousand per month but the bills were charged in three years from 2011
to 2014 electric items involved in those bills were about 30 million or 32.5millionsbut
theappellants/Ghulam Mustafa Hulio, Zameer Ahmed Abro, Municipal Commissioner,
Abdul QadirShaikh, Municipal Commissioner, Munawar Ali Brohi, Sub Engineer,
InayatullahAbro, Sub engineer, Qurban Ali Abro, Sub Engineer and Ghulam Abbas
Shaikh, Store Purchase Officer failed to discharged their duty honestly and released
the government funds on fake documents when the material was not purchased or
installed/utilized at the site.PW-7 Manzoor Ali Electrician deposed that he was
posted as an electrician in TMA Larkana. The I.O NAB showed him the bills of
Electrical material for the years from 2011 to 2014 those were containing his
forged signatures. In cross-examination,
he admits that “It is correct that light arrangements
were made by the LMC. It is correct that tango light is costly than the common
lights. It is incorrect to suggest that the light in the Larkana city at public
places were installed by me and the signatures were obtained from me for the
same”.Some of the bank officers produced the bank record in their evidence
and confirm that the appellantshad opened their bank accounts in their
respective banks.
22. Finally the prosecution examined the I.O of
the case Pw-30 Zulifquar Ali Shah. The inquiry was authorized to him, during the
inquiry he has recorded the statement of the witnesses and the total loss was
detected as Rs. 64,507,116. A loss against development work was detected at Rs.
43,350,781/00 and loss against non-development work was detected as Rs.
21,156,335/00. He has seen the seizure memoranda from Ex-36/1 to Ex-64/1.For
non-development work, it was found that almost all the funds were transferred
into the accounts of two companies namely M/sArsalan contractors and M/s K.K
Contractors. The owners of the companies were Ghulam Abbas Shaikh (Store
Purchase Officer) and Abdul SatterShaikh (Tax Clerk). Both were employees were
of Municipal Corporation, Larkana.The witness also produced a complaint as Ex-
65/C and other documents. Although the
witnesses named above were cross-examined by the defence counsel at length,
wherein learned defence counsel asked multiple questions to shatter their
confidence but could not extract anything in favour of the accused/appellants
and they remained consistent on all material points.
22. Irrespective of the defects disclosed by the
learned counsel for the appellants or mentioned in the investigation. It will
not change the complication as there was another material which has been
converted into an investigation which shows that Section 9 of NAB is attracted,
during the investigation, it was surfaced that 40 KV Generators were not found
at the site and 12 KV Generators were provided which was against the Rules and
loss to Government, MB of the said work was not found as well as work was not
executed at site. However 1st R.A Bill paid to the contractor. The
work was found at the site but less in quantity. Ten schemes were not executed
at all. The work was not completed at the site but the amount was paid to the
contractors. The prosecution has discharged the onus of proof by adducing
cogent, concrete and forthright evidence againstthe above named accused
persons. But in their rebuttal, while recording their statement under section
342 Cr.P.C the appellants simply denied the allegation leveled against them.
Neither they examined themself on oath nor produced any witness in theirdefence.
However, they filed their statements under section 265f (5) Cr.P.C. by taking
the plea that in the complaint their names were not disclosed by the
complainant.
22. The upshot of the above discussion is that
the prosecution/NAB has sufficiently established its case against the accused
persons.The appellants were involved in the offence of corruption and corrupt
practice as defined under section 9 (a) (iii) (iv), (vi) & (xii) of NAO,
1999punishable under section 10 (a) of the said
ordinance. Consequently, the appeals filed by the appellantsAsifSardarArain, Ghulam Mustafa Hulio,
ZamirHussainAbro, InayatullahAbro, Qurban Ali Abro, Ghulam Abbas Shaikh
JahangirChanna and GhulamQadir Bhutto are dismissed,the convictions and sentences recorded by the learned Trial
Court vide judgment dated 27.02.2021 against above-named appellants are hereby maintained.
22. During the pendency of this appeal,
appellants Ghulam Qadir and Tufail Ahmed in Appeal No.D-27 of 2021 who are
Government Contractors entered into PB and such PB application was accepted by
the Competent Authority. Application u/s 25 (b) f NAO, 1999 for plea bargaining
was filed b the appellants Ghulam Qadir and Tufail Ahmed (Appeal No.D-27/2021)
before the Chairman NAB and the entire liability amount viz. Rs. 6,35,677 and
Rs.4,58,981/- respectively was determined and same was paid to the NAB
authorities. The allegation against the appellant Ghulam Qadir Aheer was that,
he in the capacity of Government Contractor, in connivance with other accused
persons managed 3x schemes work orders and drawn payment of the works executed
found substandard by the expert and his individual liability was Rs.635,677/-,
whereas appellant Tufail Ahmed in
connivance with other accused persons managed 2x schemes work orders and
drawn payments of the works executed found substandard by the expert and his
individual liability was Rs.3,58,981/-. The application for plea bargain was
moved and Director General NAB in exercise of powers vested to him have
accepted the offer as the convict/appellants Ghulam Qadir Aheer and Tufail
Ahmed deposited fully payment amount of Rs. 635,677/- and Rs. 458,981/-
respectively. As such the amount has been deposited and the accused offered to
return the amount by entering into plea bargain u/s 25 (b) of NAO 1999. Resultantly, the accused named above were
convicted u/s 25 (b) of NAO, 1999 read with 15 (a) of said Ordinance. Both were
forth with seize to hold public office, if any, held by them u/s 15 (a) of the
NAO, 1999, and shall disqualified for a period of ten years, which will be
reckoned from the date their release after serving the sentence, for seeking or
from being elected, chose, appointed or nominated as a member of representative
or any public body of any statutory or local authority or in service of
Pakistan of any Province. They are in custody, therefore Superintendent Central
Prison________ directed to release them forthwith, if they are not required in
any custody case. In view of above modification, the Crl. Appeal No.D-27/2021
is dismissed.
Judge
Judge
Nasim/P.A