P L D 2020 Balochistan 15
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
BASHIR AHMED--- Petitioner
Versus
DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU through DPGA,
NAB(b), Quetta ---Respondent
Constitutional Petition No.397 of 2019, decided on 16th October, 2019.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(iv)(v)(vi) & (b)--- Criminal Procedure Code (V of 1898), S.498--- Constitution of
Pakistan, Art.199--- Constitutional petition ---Pre -arrest bail, grant of ---Mala fide---Filing of
reference---Petitioner was government servant who was investigated by National
Accountability Bureau (NAB) on misappropriation and wastage of stored and surplus wheat under his supervision ---Validity ---Petitioner being incharge of go- down in question
submitted number of applications regarding deterioration of wheat on account of weevil -
ing/insect attacks and making arrangements for fumigation as well as repair of go- downs but
no heed was paid by high- ups of department copy where of were at tached with petition to
high-ups of department ---Allegatgions of prosecution regading guilt of petitioner required
further probe and singling out petitioiner as accused was unfair ---In presence of such
requests made by petitioner followed by repeated reminders, high officials could not be exonerated from liability ---Prima facie, it seemed that petitioner, being official of lower
grade was made scapegoat by department just to save skin of high officials from clutches of law---Despoite there being total capacity of 2,38,000 bags at go- down in question, why
wheat stock of 5,14,492 bags were stored in open premises for long period and who was responsible for procuring such huge quantity of wheat and kept it in open place ---High Court
accepted petitions despite cooperating wih NAB authorities in inquiry, petitioner
apprehended his arrest by NAB in inquiry causing humiliation and unjustifiable harassment --
-Bail was allowed in circumstances.
Bashir Ahmed, present in person.
Jaffar Raza Khan, Special Prosecutor, NAB for Respondents.
Date of hearing: 10th October, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---In the instant Constitutional Petition, the petitioner
has claimed the following relief: -
"Keeping in view of the above submission it is most respectfully prayed that this Hon 'ble Court may be pleased to pass order as under: -
1. To grant the petitioner pre -arrest bail in pending impugned inquiry/investigation
pending amongst him with NAB (B) in case No.100224.
2. To suspend the operation of impugned notice No.B /3/1w -2/NQ/C -100224/2018-
394 dated 24.01.2018.
3. Restrain the respondent NAB (B) from calling against and again or harassing the petitioner.
4. Grant any other relief which this Hon 'ble Court deem fit and proper under the
circumstances of the case.
5. An ad- interim relief is also solicited".
2. We have heard the learned counsel for the petitioner, the learned Special Prosecutor
NAB and have also perused the available record with their a ble assistance.
3. It may be seen that the petitioner was posted as District Food Controller/Incharge PR
Center Sariab Godown, Quetta, vide notification dated 16.04.2015. On 26.05.2015 the
Director Food Balochistan issued order, allowing the petitioner to receive the procured wheat of 2015 allocated for Sariab Godown, Quetta. As per record storage capacity of PR Center Sariab Quetta is of 2,38,000 wheat bags. A huge quantity of 5,14,492 wheat bags out of
7,73,040 wheat bags were stocked in open gangues duly covered with tarpaulins due to non-
availability capacity in Godown. On 30.09.2016 the then Deputy Director Food Quetta Zone
Quetta issued a letter to the accused/petitioner (Bashir Ahmed Abro) with the allegation that all of sudden "shortage of 753.227 kg s as storage losses and 3000 bags weighing 299.954 kgs
as damaged/rain affected" has been found which is unjustifiable and amounts to an intentional mis -appropriation of the government wheat stock.
3(sic) On the basis of such allegation, Humayun Khan, Addi tional Secretary, Energy was
appointed Inquiry Officer by the competent authority vide letter No.PS -Misc.98 Vol -
XII/2134 dated 09.08.2017. The said Additional Secretary Energy conducted full -fledged
inquiry and ultimately exonerated the accused/petitioner from the charge with the following conclusion: -
"The undersigned has thoroughly perused the reply of Mr. Bashir Ahmed, District Food Controller/Incharge PR Center Sariab Road Godown, Quetta. in the light of supporting documents produced by him in his defe nse the undersigned has come to
the conclusion that all humanly possible efforts were made to ensure the safety of the Government wheat stocks by him. The total variation/losses of 753227 kgs being 0.98 kgs per bag on 773040 bags (total bags stored at PR C enter Sariab Road Godown
Quetta) has occurred due to excess storage, open storage, prolong storage, pathetic condition of Godown, weevil/insect attacks, non/ineffective fumigation, non-provision of fresh tarpaulin and weathering effects etc, whereas 3000 bags damaged has occurred naturally due to excess storage and open ground without plinths where
the lower layer of wheat got damaged. Therefore, holding Mr. Bashir Ahmed, responsible for the same would not be fair"
4. It reveals from the record that the arr ival of surplus wheat dispatched to the PR Center
Sariab Road Godown Quetta i.e. 514492 bags were stored in the open premises in the form of Ganjies PR Center Sariab Road Godown Quetta had only 10 plinths on which a maximum of 55000 bags could have been st ored but rest of the wheat dispatched was stored in the open
places including open grounds, roads, passages etc.
5. Perusal of the record further shows that the petitioner being Incharge of the PR Center
Sariab Road Godown Quetta submitted number of applic ations, copy whereof are attached
with the petition to the high- ups of the department i.e. Deputy Director Food as well as
Secretary Food, Government of Balochistan, followed by repeated reminders regarding the deterioration of wheat on account of weevilli ng/insect attacks and making arrangements for
fumigation as well as repair of godowns, but no heed was paid by the high- ups of the
department.
6. In such backdrop, the allegations of the prosecution qua the guilt of petitioner require
further probe and sin gling out the petitioner as an accused seems unfair, in presence of such
requests made by the petitioner, followed by repeated reminders, the high officials cannot be exonerated from liability. Prima facie it seems that the petitioner, being an official of lower
grade has been made escape- goat by the department just to save the skin of high officers
from clutches of law. The most important question arises here that despite there being total
storage capacity of 238000 bags at PR Center Sariab Road Godown Que tta as per record of
Food Department why wheat stock of 514492 bags were stored in open premises for a long
period and who was responsible for procuring such huge quantity of wheat and kept it in open place but the NAB authorities have only issued call -up notice dated 24- 01-2018 to
petitioner who is a low grade officer. Even otherwise, despite cooperating with the NAB
authorities in inquiry the petitioner apprehends his arrest by NAB in inquiry causing
humiliation and unjustifiable harassment, therefore, the petition filed by the petitioner is
accepted. The interim order dated 30.04.2019 is hereby confirmed. The petitioner is directed to cooperate with the NAB Authorities as and when required.
7. Before parting with the order in hand, we have observed that a fter the second world
war food items especially wheat short fall was emerged in the world, therefore, a rationing system was introduced by different governments to provide basic commodities i.e. wheat, ghee, sugar, and coal to the general public which cont inued functional till 1987. In this
connection, the Government of Balochistan established the Food Department to procure wheat from small genuine growers in order to encourage them to cultivate wheat; to maintain strategic reserves for the general public, to meet any emergency and shortfall of wheat in the province and to maintain the market price in order to discourage monopoly of the mill owners, however, the Department has bitterly failed to achieve the said objectives, rather, it has become a liability. As a matter of fact, the huge quantity of food worth billions of rupees
is procured every year and mismanaged and lost by a poorly staffed, inefficient and low -
resourced Directorate of Food. As a result of that, the Department bas caused loss of Rs.1,225, 752,379/ - to the exchequer of the Provincce, having the most impoverished people
in the c ountry. Hundreds of staff members of the department, including Secretaries and Ex-Minister are facing corruption allegations before the anti -corruption agencies and t he Court.
Keeping in view the said anomalies, Mr. Ghulam Ali, the then Secretary Food, after
mentioning all the illegalities and irregularities in the process of procurement of wheat and performance of the Department made the following suggestion on 03.12. 2018.
"1. Therefore, the Hon'ble Chief Minister, Balochistan may kindly place the above items in the agenda of upcoming cabinet meeting for the decision of the Government."
8. Similarly, Mr. Abdusalam Khan Kakar, the then Caretaker Minister for Labor,
Man power and Food, after visiting different godowns, established by the Food Department,
suggested the Chief Minister on 25.06.2018 as under:
"Last but not the least it is my humble submission to the Competent Authority to review policy of procuring of wheat and abolish the department of food to relieve the
Government of defamation because the Department has failed altogether to deliver service, and instead earned bad name for the government."
9. As stated above ever -since the engagement of Food Department in the subsidized
procurement, storage and sale of wheat as per government policies, there has been more reports of embezzlement and waste than service delivery and relief to the general public. According to the balance sheet, the department has incurred a loss of Rs.1,225,752,379/ -due
to theft, embezzlement and wastage. A number of cases are being investigated and tried by anti-corruption agencies and to curb the same number of measures which could have been
undertaken to improve the working environment in the public interest, yet unfortunately none of those steps have been taken to avoid the huge loss and protect innocent victims.
10. As a matter of fact the department was supposed to procure wheat from small genuine
growers at support price (subsidized) i.e. at higher rate than the open market and also provide
empty gunny bags to the growers free of cost and to issue wheat stock on subsidized rates or sale wheat to the flour mills at subsidized rate and grinding charges to mill owners in order to provide the same to the fair price shops or to establish sale points at a cheaper price to the general public. The department procures wheat at the rate of Rs. 1,300/ - per 40 KG. On the
other hand, market sales out 40 KG of wheat at 1100 to 1200. This incentive is granted by
the Government to the growers in order to support/encourage them. The transportation
charges, fumigation tablet, tarpaulin and other allied charges bring each bag at the cost of about Rs.4,100/ - to 4,400/ -. Similarly, the Government of Balochista n also gives subsidy
upon the said wheat from Rs.600/ - to Rs.1200/ - on per 100 KG bag. Although the wheat has
two subsidies yet neither is the genuine grower supported, nor the general public is supplied flour at cheaper price due to political pressure, un timely approval of subsidy and lack of
proper check and balance and policy of distribution, resultantly, subsidy of billions of rupees is embezzled by the mill owners, Incharge of food godowns and food mafia.
11. Wheat stocks are stored as a strategic reserve for the interest of general public which
requires to be equally distributed among all the districts according to the population and monthly offtake of the concerned districts, but we are afraid that all the stocks are being stored in Quetta and nearby districts like Pishin and Mastung. We were informed that the food mafia gets all the procured wheat stored in PRC, Quetta, Pishin and Mastung and issue it to the flour mills of both the districts which is easily smuggled to the neighboring country without providing relief to the commonmen of Balochistan for whom millions of subsidy is
granted.
12. It is worth mentioning that the Chairman, National Accountability Bureau, while
exercising powers under Section 33(c) of National Accountability Ordinance, 1999 constituted a committee comprising of NAB officials, representatives of different
departments and other stakeholders with the task how to prevent corruption in the Food Department. The Committee after a long deliberation, identified a number of issues/probl ems
which includes misappropriation/ embezzlement of wheat, purchase of substandard wheat, artificial wheat shortage, fraudulent claims of transport charges, misappropriation of wheat bags, posting of junior and untrained staff as Incharge PRCs, lack of pr oper supervision and
surveillance, procurement of large quantity of wheat without considering the capacity of PRCs, high wheat prices and pathetic condition of PRCs. The committee, after consultation, coordination and deliberation of four years, finalized recommendations, duly communicated
to the government of Balochistan but the same have not been implemented in letter and spirit.
In view of the above, Registrar of this Court is directed to send the copy of this order
to the Chief Secretary Balochistan as well as to the Principal Secretary to the Worthy Chief
Minister. We expect that the Worthy Chief Minister will look into the matter, who has otherwise "reportedly" restrained the Department from procuring wheat.
These are the reasons of our short order dated 10 -10-2019.
MH/131/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,
let us know.