2015 P Cr. L J 621
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Kamran Khan Mulakhail, JJ
MOHAE -UD-DIN---Petitioner
versus
The STATE through Prosecutor -General Balochistan ---Respondent
Constitutional Petition No. 900 of 2014, decided on 5th January, 2015.
(a) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(vi) & 33 -B--- Criminal Procedure Code (V of 1898), S. 497(2) --- Constitution of
Pakistan, Art. 199--- Constitutional petition ---Bail, grant of ---Case of further inquiry ---
Documentary evidence ---Corruption and corrupt practices in tendering process ---Proof ---
Petitioner was arrested by National Accountability Bureau on the allegation of committing
corruption and corrupt practices in process of tenders for c onstruction of parliament lodges ---
Validity ---Allegation against petitioner was based upon presumption alone because rightly or
wrongly it was disclosed that during earlier round of bidding process fictitious publication was
made and whole process was cancelled and new pre- qualifications were invited ---Earlier bidding
process was cancelled on initiative of petitioner and Bank transaction of two private individuals
was termed/presumed as transaction on behalf of petitioner ---Allegation in respect of Bank
transaction and involvement of petitioner with the object to secure pecuniary gain, related to
evidence, which at such stage could easily be termed as question of further inquiry ---High Court
accepted bail of petitioner when relevant record was in possession of National Accountability
Bureau authorities and there was no possibility of tampering with documentary evidence and
main allegation of misuse of authority required further probe ---Petition was allowed in
circumstances.
Saeed Ahmed v. The State 1995 S CMR 170 and Ejaz Akhtar v. The State 1978 SCMR 64
ref.
(b) National Accountability Ordinance (XVIII of 1999) ---
----S. 14(a) --- Corruption and corrupt practices --- Presumptions ---Prosecution, in the light of
concept of criminal administration of justic e is not absolved of its duty to prove charge beyond
reasonable doubt.
Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.
Syed Ayaz Zahoor and Adnan Kasi for Petitioner.
Ch. Mumtaz Yousuf Deputy Prosecutor -General NAB and Amir Zaman Jogizai, Senior
Prosecutor NAB for the State.
Date of hearing: 17th December, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The petitioner is serving as
Executive Engineer (XEN) and posted in Maintenance Division- I in the Communication and
Works Department, Government of Balochistan (C&W) and through this petition he seeks post -
arrest bail in the case relating to pending inquiry/investigation before the National Accountability
Bureau (NAB) Balochis tan.
2. The brief facts of the case are that NAB received a source report in respect of corruption
and corrupt practices committed during the tendering process for construction of Parliament
Lodges at Quetta. In pursuance of investigation, initially a notice dated 20th February, 2014
under section 33- B of the National Accountability Ordinance, 1999 (NAO) was issued to the
petitioner for furnishing the requisite details of the tendering process on prescribed pro forma in
response whereof, the requisite inf ormation was provided by the petitioner on 25th February,
2014 along with complete record of tendering process: The inquiry was pending before the NAB
authorities when on 26- 11-2014 the petitioner was summoned by the Investigating Officer NAB
and thereafter he was, arrested in connection with referred to investigation.
The main gist of the allegation is that prior to bidding process a publication with caption
of "Notice Inviting Tenders" was shown to have been published in Daily Express Century dated
3rd February, 2014 but the said publication was found fictitious and proved to be fake and
managed by the petitioner just to award the contract to the firm of his own choice i.e. "Messrs
Ghulam Rasool Lehri and Brothers" against illegal gratification/bribe. I t is further mentioned in
the report that when the said corruption and corrupt practices were traced out, the petitioner
himself wrote a letter to his Chief Engineer and the whole tendering process was cancelled. The
report shows that the tenders were reinitiated and after pre -qualification of bidders the contract
was awarded to "Messrs Agha Muhammad & Company" but during the second round again
gross illegalities and irregularities were noted, which culminated into the arrest of the petitioner.
3. Syed Ayaz Zahoor, Advocates assisted by Barrister Adnan Kasi learned counsel for the
petitioner strongly controverted the allegations and referred to a letter dated 7- 3-2014, addressed
to the petitioner by "Messrs Ittefaq Construction Company", wherein it was poi nted out that the
advertisement published in the Century Express newspaper for inviting tenders was bogus and
fictitious. He further referred to a letter dated 7 -3-2014 written by the petitioner to the
Superintending Engineer, Maintenance Circle, Quetta, w herein it was informed that on
application of "Messrs Ittefaq Construction Company", the advertisement was found fictitious,
therefore, the cancellation of tenders was solicited. He asserted that in pursuance of referred to
letter, vide letter dated 10 -3-2014, the tenders were cancelled and the petitioner was directed to
reinitiate the tendering process after pre -qualifying the eligible contractors/firms. He also
referred to numerous copies of official correspondence and asserted that in second round
initia lly, the applications for pre -qualification were invited, whereby twenty one firms applied,
but only seven were short listed, after obtaining the approval of pre -qualified seven firms, they
were intimated about their pre -qualification and thereafter the tenders/bids were invited. The
learned counsel further referred to the copies of letters wrote by the petitioner to the concerned
banks for verification of call deposit receipts submitted by the pre -qualified firms. He also
referred to the attendance list dated 24- 4-2014 and another letter of even date, which shows that
the representative of NAB namely, Muhammad Arif was present during the bidding process,
when "Messrs Haji Agha Muhammad Khan and sons" were declared as the lowest bidder. He
also referred to a comparative statement, which shows the signature of Muhammad Arif, the
representative of NAB. He maintained that after receiving bids, same were placed before the
"Bid Evaluation Committee", which were approved in its meeting dated 8 -5-2014 and thereafter
the contract was awarded to the successful bidder. Syed Ayaz Zahoor urged with vehemence that
the petitioner soon after having come to know about the fictitious publication during the first
round of tendering process, immediately informed the Chief Engine er and solicited the
cancellation of tendering process. He maintained that the second round of tendering process was
undertaken in presence of the NAB's representative, which was accordingly approved by the bids
evaluation committee, therefore, at subseque nt stage, dragging the petitioner towards the misuse
of official authority for illegal pecuniary gain is unjustified. He stated that the whole NAB case
is based upon surmises and conjectures, which has been built up on presumptions alone. He
asserted that no illegal pecuniary gain could have been detected against the petitioner rather a
bank transaction between previous bidder and present bidder was presumed as refund of
gratification amount by the successful bidder to the previous successful bidder on beha lf of the
petitioner. He contended that the said allegation is the backbone of the NAB's investigation but
that too is without any cogent and reliable evidence. During the course of arguments tie Civil
Miscellaneous Application was filed under section 151 of the Code of Civil Procedure, 1908
(C.P.C.) and the deteriorated health condition of the petitioner was also agitated as an additional
ground for his release on bail. The learned counsel finally urged that the petitioner has already
been shifted to judic ial custody and all the relevant record has already been impounded by the
NAB. He further maintained that all the evidence against the petitioner is based upon documents
and there is no possibility of tampering the same, therefore, the petitioner deserves to be
admitted to bail. In support of his contention he referred to reported judgments in cases of Saeed
Ahmed v. The State (1995 SCMR 170) and Ejaz Akhtar v. The State (1978 SCMR 64). He
contended that the procedural irregularity if found, does not attrac t the provision of section
9(a)(iv) of the NAO without establishing the mens rea on the part of the petitioner. Therefore, on
this ground too the case against the petitioner requires further probe and he deserves to be
admitted to bail under subsection (2) of section 497, Cr.P.C.
4. Ch. Mumtaz Yousuf the learned DPG assisted by Mr. Amir Zaman Jogizai Senior.
Prosecutor NAB filed report and at the very outset referred to section 14(a) of NAO and
contended that the basic onus of proof is upon the petitioner and he has to discharge the initial
burden of proof under the referred to provision. He asserted that the petitioner on having come to
know that the NAB authorities have successfully traced out his misuse of authority followed by
illegal pecuniary gain, h e rushed to cancel the tendering process initiated earlier, therefore, mens
rea on the part of the petitioner is successfully established. He added that even during second
round of bidding process glaring irregularities and gross illegalities are evident a nd the petitioner
has failed to give any plausible explanation to the queries posed by the Investigating Officer. He
also added that during the raid on the petitioner's office, the fictitious newspapers were recovered
along with letter pad of various compa nies, which were procured for manipulation in the bidding
process. He stated that the amount of Rs.14 millions transferred by successful bidder into the
account of previous successful bidder, shows that the transaction was made on behalf of the
petitioner in lieu of the gratification earlier received by him. He finally urged that sufficient
incriminating evidence has been collected against the petitioner, which prima facie disentitles
him for the relief claimed. He, therefore, prayed that the petition may b e dismissed.
5. We have heard the learned counsel and have also gone through the record. The referred to
documents and copies of official correspondence on behalf of the petitioner show that the
tendering process was cancelled on the objection of "Messrs Ittefaq Construction Company" and
thereafter the whole process was reinitiated. After compiling the comparative statement the
lowest bid was placed before the 'Bid Evaluation Committee' and on approval thereof, the
contract was awarded to the "Messrs Agha Muhammad Khan & Sons". The accused/petitioner
has already been shifted to judicial custody in view of the additional ground i.e. his physical
condition. Further, all the relevant record had already been taken in possession by the
prosecuting agency. Thus the petitioner is no more required for the purpose of investigation. The
NAB has submitted only a report and no parawise comments along with relevant documents
were placed before the court. The report submitted by the NAB manifests that the allegation
against the petition is based upon the presumption alone because rightly or wrongly, once it has
been disclosed that during the earlier round of bidding process the fictitious publication was
made the whole process was cancelled and new pre- qualifications were invited. The record
shows that earlier bidding process was cancelled on initiative of the petitioner, and bank
transaction of two private individuals was termed/presumed as transaction on behalf of the
petitioner. Thus, it can safely be concluded that the allegation, particularly, in respect of referred
to bank transaction and the involvement of petitioner with the object to secure pecuniary gain,
relate to the evidence, which at this stage can easily be termed as question of further inquiry.
As far as the provision of section 14(a), N.A.O. is concerned no cavil is left to hold that
in the light of concept of criminal administration of justice the prosecution is not absolved of its
duty to prove the charge beyond reasonable doubt. Reference is made to the case of Khan
Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607). However, the applicability of
referred to provision of N.A.O. can be pressed into service after leading the evidence and by
discharging the initial burden of proof and the said ques tion cannot be attended at this stage,
while dealing with the issue of bail.
6. In view of dictum laid down by the Hon'ble Supreme Court of Pakistan in Saeed Ahmed's
case (ibid), when the relevant record is already in possession of the NAB authorities and there is
no possibility of tampering with documentary evidence, and the main allegation of misuse of
authority requires further probe. Moreover, on basis of medical ground, as well, we are inclined,
to accept this petition. Resultantly the petitioner, na mely Mohae -ud-din son of Khudaidad Khan
is admitted to bail subject to furnishing two sureties in sum of Rs.10,00,000 (Rupees one million)
each with PR in the like amount to the satisfaction of the Additional Registrar of this Court.
MH/8/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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