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