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Petitioner: Hafiz Mian MUHAMMAD NAUMAN VS Respondent: DIRECTOR GENERAL NAB and others
Court Name: Lahore High Court Judge(s): Ali Baqar Najafi, Sardar Ahmad Naeem Title: Hafiz Mian MUHAMMAD NAUMAN vs DIRECTOR GENERAL NAB and others Case No.: Writ Petition No. 581 of 2019 Date of Judgment:2019-09-18 Reported As: 2020 P Cr. L J 289 Result: Bail granted
Judgment ORDER Earlier , these petitions have been dismissed by a Division Bench of this court, but on 02.08.2019 the Hon'ble Supreme Court had remanded these petitions before this court to be decided on merits. Order is reproduced as under:- "We have heard the learned counsel for the petitioners, more particularly , Syed Ali Zafar , learned ASC for the petitioner in Civil Petition No.1732/2019 and with his assistance, have examine d the available record and the impugned order dated 18.2.2019 of the Lahore High Court passed in W.P. No.581/2019. It is clear and obvious that the said impugned order is based on wron g assumption of facts, which is totally contrary to the record and perhaps the real matter in controversy in this case as well as in the connected cases may have escaped the adjudication. 2. In order to avoid prejudice to either side and to avoid miscarriage of justice, it would be appropriate that the impugned orders dated 28.11.2018 and 18.2.2019 are set aside and the matter is remanded back to the learned High Court, where the Writ Petitions Nos.229728 of 2018, 220081 of 2018 and 381 of 2019 shall be deemed to be pending, which shall be decided afresh on their own merits, after hearing both the parties. Since the petitioners are behind the bars, we are confident that the learned High Court shall decide the matter expeditiously preferably within a period of 30 days, after the receipt of this order . 3. In view of the above, these civil petitions are converted into appeals and the, same are disposed of accordingly ." 2. This order shall dispose of W.P. No.581-2019 titled "Hafiz Mian Muhammad Nauman v. Director General NAB and others" as well as W.P. No. 220081-2018 titled "Taseer Ahmad v. The State and others" , and W.P. No.229728-2018 titled "Usman Qayyum v. Director General NAB and others" as all the petitioners have sought their post arrest bail by invoking the cons titutional jurisdiction of this court in ACR No.87- 2018 titled "The State v. Hafiz Mian Muhammad Nauman and others". However , all the three petitioners were arrested on their respective grounds of arrest which are reproduced as under:-
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"Grounds of arrest against Hafiz Mian Muhammad Nauman, 1. The inquiry/investigation conducted so far reveals the prima facie involvement of Hafiz Nauman, being Chairman of Lahore Parking Company Limited in the commission of offences as defined under section 9(a) and Schedule of the National Accountability Ordinance, 1999. 2. Following facts form basis for immediate arrest of the accused:- a. Accused Hafiz Mian Nauman, being chairman of Messrs Lahore Parking Comp any Limited actively participated in the operations of company and visited the parking sites of Messrs Green Parking Dubai (only parking company in the Joint Venture). Thereafter , accuse d Hafiz Nauman, being chairman receiv ed a letter from Messrs Green Parking Dubai that agreement had been signed without their participation and fraudulent misrepresentation by Messrs AGCN/NTG Pakistan (Pvt.) Limited. Despite having knowledge of mis-representation by Messrs AGCN/NTG Pakistan (Pvt.) Limited, he being Chairman Board of Directors deliberately accorded the approval for illegal change of JV partner . b. Accused Hafiz Nauman, being chairman despite having knowledge of illegal signing of agreement without approval of BODs, deliberately did not take any action which reflects his connivance in commission of offence. c. Accused Hafiz Nauman, also actively participated in physical verification/inspection of illegal JV partner Messrs ZTE Corporation and proceeded to China as well. d. That the accused Hafiz Nauman, being Chairman of Lahore Parking Company , failed to exercise his authority and deliberately did not took any action for not handing over all the Parking sites i.e. 246 as per agreement and only hand over 33 lucrative parking sites to NTG/AGCN Pakistan. e. That the accused Hafiz Nauman, being chairman of Lahore Parking Company , failed to exercise his authority and malafidely did not ensure the capital Investment to be made by NTG/AGCN Pakistan and committed criminal negligence by compromising the projected revenues (Promised revenue) to be provided by NTG (co-accused) as per bidding documents. f. That the accused Hafiz Nauman, being chairman of Lahore Parking Company , failed to exercise his authority and did not take over the parking site handed over by City District Govt. Lahore (CDGL) and let these sites operated illegally in connivance with other accused persons. g. Accused Hafiz Nauman was given fair chance to explain the allegations levelled against him, however , he failed to submit any plausible reply . h. It is likely that accused may escape underground himself and will tamper the prosecution evidence through coercion, criminal inducement and criminal intimidation. i. Arrest of accused is necessary for the recovery of corruption money , collection of evidence and concluding the investigation in accordance with law ." "Grounds of arrest against T aseer Ahmad. 1. The inquiry conducted so far reveals sufficient evidence to prove prima facie involvement of Taseer Ahmad, being Managing Director of Lahore Parking Company Lahore, in the commissio n of offences as defined under section 9(a) and Schedule of the National Accountability Ordinance, 1999. 2. Following facts form basis for immediate arrest of the accused:- a. Accused Taseer Ahmad, being Managi ng Director signed the agreement betwee n Lahore Parking Company and AGCN/NTG Pakistan for project "Parking operations and Management agreement for Lahore City" without the presence of foreign Joint V enture partners Messrs Green Parking Dubai in sheer violation of rules. b. At the time of contract accused Taseer Ahmad dishonestly did not make the capital investment and projected revenue (Promised Revenue) as part of the agreement (the responsibilities which the contractor was bound to perform as per bid document). c. Accused Taseer Ahmad, malafidely allowed the post bid changes of consequential nature in contradiction/violations of Punjab Procurement Rules and in violation RFP . d. Accused Taseer Ahmad, being Managing Director at the time of signing agreement changed the penalty clause with respect to RFP from Rs.20000 to Rs.5000 per day for breach of execution timeline or the project plan and that too was never imposed on contractor .
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e. The accused did not deliberately exercise his authority to ensure actualization of capital investment by AGCN/NTG (co-accused) and committed criminal negligence by compromising the projected revenues (Promised Revenue) to- be provided by NTG (co-accused) as per bidding documents. f. The accused did not deliberately and with mala fide intentions hand over all the parking sites as per stages/zones in light of schedule-1 1 of agreement rather hand over only 33 lucrative sites to the contractor (co-accused). g. Accused Taseer Ahmad, was given fair chance to explain the allegations levelled against him, however , he failed to submit any plausible reply . h. It is likely that accused may escape/ underground himself and will tamper the prosecution evidence through coercion, criminal inducement and criminal intimidation. i. Arrest of accused is necessary for the recovery of corruption money , collection of evidence and concluding the investigation in accordance with law ." "Grounds of arrest against Usman Qayyum, 1. The inquiry conducted so far reveals sufficient evidence to prove prima facie involvement of Usman Qayyum, being Managing Director and Chief Finan cial Officer (CFO) of Lahore Parking Company Lahore, in the commission of offences as defined under section 9(a) and Schedule of the National Accountability Ordinance 1999. 2. Following facts form basis for immediate arrest of the accused.- a. Accused Usman Qayyum, being Mana ging Director/member of tender evaluation committee evaluated all the bids submitted by the bidders and recommended for physical verification of JV partners of AGCN (Green Park Dubai). He also visited Dubai and physically verified Green Park but at the time of contract deceitfully and dishonestly did not get the contract signed with foreign JV partner i.e. Green Parki ng Dubai. Thus extended undue favour to AGCN by the award of contract. b. That the accused Usman Qayyum as Chairperson of evaluation committee, malafidely approved the post bid changes of consequential nature in contra diction/violations of Punjab Public Procurement Rules and in violation of RFP. c. That the accused Usman Qayyum being member of bid evaluation committee at the time of signing agreement changed the penalty clause with respect to RFP from Rs.20000 to Rs. 5000 per day for breach of execution timeline or the project plan and that too was never imposed on contractor . d. At the time of contract accused Usman Qayyum dishonestly did not make the capital investment and projected revenue (Promised revenue) as part of the agreement (the responsibilities which the contractor was bound to perform as per bid document. e. That the accused Usman Qayyum as member of project committee did not deliberately and with mala fide intentions hand over all the parking sites as per stages/zones in light of schedule-II of agreement rather hand over only 33 lucrative sites to the contractor (co-accused). f. Accused deliberately did not exercise his authority to ensure actualization of capital investment by NTG/AGCN Pakistan (co-accused) and criminally compromised the projected revenue as per financial bid of AGCN Pakistan. g. Accused Usman Qayyum was given fair chance to explain the allegations levelled against him, however , he failed to submit any plausible reply . h. It is likely that accused may escape/ underground himself and will tamper the prosecution evidence through coercion, criminal inducement and criminal intimidation. i. Arrest of accused is necessary for the recovery of corruption money , collection of evidence and concluding the investigation in accordance with law ." 3. Brief facts as contained in ACR No.87- 2018 titled "The State v. Hafiz Mian Muhammad Nauman and others" are that the petitioners Chairman, Chief Executive Officer and Managing Director/Chief Financial Officer of Lahore Parking Company Limited (hereinafter to be called LPCL) whereas one Faizan Wali and Saad Rafiq were the General Manager Operations and Manager Accounts/Finance, respectively , and Muhammad Faisal Ahad Rao was the Chief Executive Officer of Messrs National Telecommunication Group Pakistan (Pvt.) Limited previously Messrs AGCN Pakistan (Pvt.) Limited. The said LPCL was incorporated on 10.08.201 2 and started its business on 29.01.2013, with a view to bring Development and Modernization in the field of parking and to benefit the people
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living within territorial limits of Lahore City by providing sustainable, efficient and affordable parking service to them and also to generate income for the company . However , it decided to outsource the parking arrangement, therefore, the tender was publically floate d and Messrs UCS Park Turkey and Messrs AGCN/NTG Pakistan (Pvt.) Limited were found as technically qualified firms. However , Messrs AGCN/NTG Pakistan (Pvt.) Limited allegedly deceitfully portrayed Messrs Green Parking Dubai and Messrs Inbox Technologies as its JV partners at the time of bidding. Messrs AGCN/NTG Pakistan (Pvt.) Limited qualified the technical bid on the basis of expertise and experience of Messrs Green Parking Company , Dubai in the field of parking. Latter denied its participation as member of JV and duly informed the accused/petitioner that the agreement was signed without their consent and knowledge. Messrs AGCN/NTG Pakistan (Pvt.) Limited also did not conduct any business transaction with Messrs Inbox Technologies Pakistan, therefore, the accused persons acted in league with management of Messrs AGCN/NTG Pakistan (Pvt.) Limited and gave undue favour to them by showing, and only showed the said two firms for the purpose of securing the project as Messrs AGCN/NTG Pakistan (Pvt.) Limited had no experience in the field of parking management yet came out as a lead bidder for a project of parking. According to advertised tender in newspaper to hand over and modernize 246 parking sites of City Lahore, the contractors were responsible to make capital investment and modernize the parking sites and, thereafter , to collect revenue from the parking sites and, therefore, was required to share the revenue collected with the government @ 45.4%. But the investigation revealed that all the petition ers in active aid, abetment and connivance with each other , dishonestly and with mala fide intentions misused their authority in order to gain/render illegal benefit for themselves and their co-accused persons and willfully failed to exercise their authority in order to prevent the grant of contract to their co-accused while indulging in offences of corruption and corrupt practices. The evidence so far collected establishes that the accused/petitioners have fraudulently and dishonestly caused loss to the national exchequer to the tune of Rs.8,00,00,000/- through corrupt and dishonest means and have comm itted the offences of corruption and corrupt practices as defined under section 9(a)(iii)(vi) and (xii) punishable under section 10 of the National Accountability Ordinance, 1999 and schedule thereto. Pertinently , during the course of investigation, the accused Muhammad Faisal Ahad Rao, Faizan Wali and Saad Rafiq admitted their guilt and entered into plea bargain by offering to return the illegal pecuniary gains amounting to Rs.6,25,00,000/-, Rs.87,50,000/- and Rs.87,50,000/- respectively which were acquired by them as a consequence of commission of alleged offences and was approved by this Court on 21.05.2018. 4. Hafiz Mian Muhammad Nauman/petitioner Chairman of Messrs Lahore Parking Company Limited was alleged to have actively participated in the operations of the company and visited the parking sites of Messrs Green Parking Dubai (the only parking company in the JV) although who received a letter from Messrs Green Parking Dubai that agreement had been signed without their participation and through fraudulent misrepresentation by Messrs AGCN/NTG Pakistan (Pvt.) Limited for a Joint Venture (JV) with Green Parking Company Dubai yet he executed the agreement with the approval of Board of LPCL and had failed to exercise his authority with mala fide and he did not ensure the capital investment by NTG/AGCN Pakistan on the parking sites by collecting the revenue in accordance with the bidding document/ agreement and had also handed over only 33 lucrative out of 246 parking sites and, therefore, failed to prevent losses caused to the national exchequer of LPCL. He is also indulged to have interfered in the operation of LPCL and deliberately did not hand over all 246 parking sites. According to the investigation report, the petitioner was arrested on 28.11.2018 after when his pre-arrest bail was dismissed by this court. 5. Taseer Ahmad accused/petitioner/Managing Director of LPCL was alleged to have signed the agreement for project titled "Parking Operations and Management Agreement for Lahore City" in the absence of the foreign Joint Venture partners Messrs Green Parking Dubai and that it did not make the capital investment in the project revenue as part of the agreement and also allowed the post bid changes in the contract in violation of PPRA Rules and the RFP and also reduced the penalty from Rs.20000 to Rs.5000. He was arrested on 26.04.2018. 6. Usman Qayyum accused/petitioner was alleged to have remained as Chief Financial Officer of Messrs LPCL from 24.12.2012 to 22.06.2017 and also served as acting Managing Director and Chief Executive Officer on two separate occasions. He actively participated in the execution of the agreement dated 06.02.2014 by Taseer Ahmad
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co-petitioner with Messrs AGCN/NTG Pakistan (Pvt.) Limited in absence of foreig n Joint Venture namely Messrs Green Parking Dubai and, therefore, the CEO of Messrs Green Parking forwarded a letter to the Chairman of Messrs LPCL that there was no Joint Venture between Messrs Green Parking and Messrs AGCN Pakistan (Pvt) Limited and that the said project was scored by fraudulent misrepresentation. A legal opinion on the matter of change of Joint Venture partner was allegedly obtained by the Legal Advisor to change the Messrs AGCN Pakistan and new JV partner Messrs ZTE China was introduced and approved on the recommendation of an evaluation committee in which the petitioner was a member . He also visited China with the co-petitioner Hafiz Mian Muhammad Nauman. The penalty clause of the agreement was changed from Rs.20000 to Rs.5000 per day for breach of execution timeline and secondly , a provision of notice was added in the termination clause before entering into the dispute resolution and thirdly , clause 26.2 of the agreement, the contract was amended permitting the change in the organizational form of the company but the new JV partner was added in violation of the contract. It was also alleged that the Messrs LPCL never imposed any penalty clause for breach of execution timelines of Messrs AGCN/NTG Pakistan who was alleged to have visited Dubai but did not sign the agreement with the JV partner . By changing the terms he allegedly caused loss to the national exchequer . 7. Learned counsel for the petitioners submit that there is no allegation of corruption against the petitioners as no substantial pecuniary loss or corresponding gain could be attributed by the prosecution against the petitioners and that the only allegation of misuse of autho rity has been levelled against them without any substantiation. Adds that the nature of job of the petitioners permi tted the acts which they have done in good faith without the element of crime i.e. mens rea and actus rea which are clearly missing. Adds that mere orientation visits to Dubai and China and signing of the agreement as the responsible officials of the company duly approved by the Board would not constitute the offence under N.A.O., 1999. Adds that the Board meetings of the Board of Directors have been rectifying the decision taken by the petitioners and as such they cannot be solely held individually responsible for the decision collectively taken by the Board. Adds that the City District Government was earning money from the parking sites and they had not imparted with their possession so was not given to the company for its further handing over to the contractor . Adds that the speculative losses were calculated on hypothetical basis and no exact liability is determined against the petitioners, particularly after when the co-accused Muhammad Faisal Ahad Rao, Faizan W ali and Saad Rafiq have cleared their liability under the plea bargain. 8. Arguments heard. File perused. 9. The Lahore Parking Company Limited (LPCL) was created under section 32 of the Companies Ordinance, 1984. It has its Article and Memorandum of Asso ciation and under clause 46 thereof, eight persons were appointed as the company's bearers. 1. Mr. Noor ul Amin DCO/Administrator , Lahore. 2. Muhammad Yousaf Secretary Transport. 3. Moazzam Iqbal EDO (F&P) CDGL, 4. Muhammad Nauman/petitionerMPA. 5. Usman Anwar/petitioner Chief Traffic Of ficer, Lahore. 6. Ramzan Siddique MPA. 7. Khawaja Haider Latif CEO L TC. 8. Mehmood Masood Tamana EDO (MS)CDGL Under Clause 47, the Chairman was to be appointed by the Board from time-to-time, amongst the Directors of the company and continued at the pleasure of the Board. The powers and duties of the Directors were to manage the business of the company and they could exercise such powers prescribed under the Ordinance or any statutory modification made or through the decisio n made in general meeting. Under clauses 64 to 68, it was provided that the Directors shall appoint any person to be the Chief Executive of the Company and under sections 198 and 199 of the Ordinance who was to hold office for a period not exceeding three years. The whole business of the Company was to be carried out by the Chief Executive who enjoyed all powers, authorities and discretion given
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under the Ordinance. He was empowere d to exercise such powers subject to the control of Board of Directors which, inter alia, included to take on lease , purchase, erect or otherwise acquire for the company any land, building and property etc, to sell, let, exchange or otherwise dispose of absolutely or conditionally , all or any part of the property etc, to enter into, carry , rescind, or vary all financial arrangements or agreement with any banks, persons, corporations in connection with Company's business and affairs etc, to determine, who was to sign on Company's behalf the bills, cheques, notes, receipts , acceptance endorsements, release of contract and documents and to enter into such negotiation and contracts and rescind or vary all such agreements and to make advances for the business of the Company to such person upon such security or without security to control and manage expenditures etc. Clause "f" would be relevant for the purpose of decision which is reproduced as under:- f) To enter into, carry , rescind, or vary all financial agreements or agreement with any banks, persons or corporations for, or in connection with the Company's business and affair and in connection with such arrangement to deposit, pledge, hypothecate any property or the Company or the document representing or relating to the same; 10. The appointment letter of the Chief Financial Officer, Usman Qayyum/petitioner , shows that he was responsible to develop finance organizational strategies, implement the proper personnel process and to act as Chief Authority on financial operations of the Company and was responsible for ensuring that appropriate advices were given to the Board on all financial matters. He was also responsible for overseeing the financial operations of the entire Company and to watch the financial interest of the business and to maintain the financial control of the Company . In other words, he was required to observe organizational objectives with reference to financial developments. 11. In order to outsource the parking facility in the city of Lahore, the LPCL advertised 246 sites to the general public. According to the NAB, AGCN with Green Parking Company came forward with an attractive offer who was also found technically qualified and theref ore, their bid was approved. On 06.02.2014, an agreement was executed between Lahore Parking Company with AGCN, Pakistan (Pvt.) Ltd. in which Taseer Ahmed, being Chief Executive Officer signed on behalf of LPCL and Faisal Arshad Rao, signed on behalf of AGCN, whereas Usman Qayyum/petitioner and one Noman Ahmed Said, were the two witnesses. It appears that clause 26.2 was provided under which the contractor was permitted to change the organizational form or status or contractual relationship and that with prior approval of LPCL, the contractor could change its members or change the joint venture partnership, but the principal company/lead bidder could not be changed. In case of default or non-performance of the joint venture partner or in case of dispute between the contractor or any of Company's joint venture partner under this agreement or under any other agreement between such joint partners, it was provided that if the joint venture partner had failed to perform their obligation, such responsibility could be assigned by the Directors to any other party of comparable expertise or experience as per request for proposal with prior approval of LPCL. Importantly , under clause 2.2 of the agreement, LPCL was responsible to provide parking facilities, parking zones and parking areas to the Company which fall with the territory , except parking areas, zones or sites owned and controlled by any government agency other than the MCL. Clause 2.2 is reproduced as under:- "2.2 For the purpose of this Agreement, LPCL shall be responsible for providing the Parking Facilities, Parking Zones and Parking Areas to the Contractor which fall within the Territory , except parking areas, zones, or sites owned, and controlled by any Government Agency other than the MCL, or which may subsequently be added in the purview of LPCL." 12. On 13.02.2014 AGCN, Pakistan wrote a letter to change the organizational structure by invoking clause 26.2 and to introduce another JV partner . On 26.02.2014, Messrs Future Link/Green Parking Company , Dubai had written a letter to Hafiz Mian Muhammad Nauman, petitioner/Chairman stating that AGCN, Pakistan (Pvt.) Ltd. and Future…
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