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Petitioner: IQBAL AHMED BABLANI and others VS Respondent: CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB) and 3 others
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title:IQBAL AHMED BABLANI and others vs CHAIRMAN, NATIONAL ACCOUNTABILITY
BUREAU (NAB) and 3 others Case No.: C.Ps. Nos.D-3813 of 2015 and D-1219 and D-766 of 2016 Date of Judgment:2016-05-23 Reported As: 2017 P Cr. L J 380 Result: Petitions dismissed Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---By this common order, we intend to dispose of the above bail petitions filed on behalf of the petitioners which all stem from National Accountability Bureau (NAB) Reference No,01/2016 State v. Iqbal Ahmed Bablani and others which is pending before Administrative Judge Accountability Courts in Karachi. 2. The facts of the prosecution case as per reference No,01/2016 are that based on a complaint received from the office of Services, General Administration and Coordination Department, Government of Sindh regarding embezzlement/misappropriation of government funds in two schemes of Transport and Mass Transit Department (T&MT), Government of Sindh an inquiry was authorized by NAB which was subsequently converted into an investigation. 3. The investigation revealed that in the year 2011-12, T&MT Department floated 2x separate tenders for the procurement of heavy vehicles and computerization of Provincial Transport Authorities/ Regional Transport Authorities (PTAs/RTAs) respectively. T&MT Department later reported to the Chief Secretary and Additional Chief Secretary P&D that despite hefty payments to the respective suppliers a number of heavy vehicles/computer/IT items were missing. T&MT Department also reported that this scenario has left T&MT Department under-capacitated to launch both projects. 4. The investigation further revealed that accused Nos.1 to 3 (petitioners 1 and 2) with conscious knowledge and in connivance with Rajab Ali Daudpota of Messrs Shaheer Enterprises misused their respective authorities in processing, approving and making illegal advance payment of Rs,20.475 million for the procurement. Of llx heavy vehicles to Mr. Daudpota and Mazhar Ali Mangi (accused No,2/petitioner No,2) signed a bogus delivery challan dated 28.5.2011 purporting that Transport
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Department had already received the delivery of all 1 1 x heavy vehicles from Messrs Shaheer Enterprises. Whereas, Messrs Shaheer Enterprises supplied only 6x heavy vehicles to Transport Department on 29.6.2011 while government funds for the remaining 5x heavy vehicles were misappropriated/embezzled. Accused Nos.1 to 3 (petitioners 1 and 2) received kickbacks from the said contractor (Rajab Ali Daudpota of Messrs Shaheer Enterprises) for their role in the said misappropriation/embezzlement of government funds. 5. The investigation further revealed that Rajab Ali Daudpota, Proprietor of Messrs Shaheer Enterprises in connection with his short supply of heavy vehicles and resultant embezzlement availed the option of plea bargain (PB) for the amount of Rs,4,105,000/- as his crime proceed which was approved by the Hon'blc Administrative Judge Accountability Courts Sindh at Karachi vide order dated 1st December, 2015. He thereby stood convicted under section 15 read with section 25(b) of N.A.O., 1999. 6. The investigation further revealed that in addition to the above, another embezzlement/misappropriation was unearthed in another set of government funds which were allocated to T&MT Department for the "Supply of Mini Buses and Mazda Trucks etc.". The said misappropriation/embezzlement was also committed by the accused Nos.1 to 3 (petitioners Nos.1 and 2 in these petitions as accused No,3 (Mr. Ram Chand) has now entered into a plea bargain with NAB and is no longer an accused in the reference), as mentioned above and during the same time period. 7. The investigation further revealed that accused Nos.1 to 3 (petitioners 1 and 2) with conscious knowledge and in collusion with each other misused their authorities in processing, approving and making advance payment of Rs,15.38 million to Messrs Mehran Associates for the "Supply of Mini Buses and Mazda Trucks etc.". Messrs Mehran Associates neither procured nor handed over any buses and trucks to T&MT Department and the entire amount was misappropriated/ embezzled. Accused Nos.1 to 3 (petitioners 1 and 2) received kickbacks from accused Nos.4 and 5 (petitioners 3 and 4) for their role in the misappropriation/embezzlement of governments funds. 8. The investigation further revealed that Kashif Raza (accused No,4/petitioner No,3) in collusion with his brother, Khawaja Mansab Ali (accused No,5/petitioner No,4) used his firm namely Messrs Mehran Associates to participate in a fake/dummy tender/quotation floated by T&MT Department for "Supply of Mini Buses and Mazda Trucks etc.". In this regard, illegal advance payment of Rs,15.3 million was received by accused No,4/petitoner No,3 through his firm, namely Messrs Mehran Associates. Instead of supplying the requisite "Mini Buses and Mazda Trucks" to T&MT Department, accused No,4/petitoner No,3, in collusion with accused No,5/petitioner No,4, withdrew certain amount in cash from his MCB, Sindh Secretariat account (in the name of Messrs Mehran Associates) using cheques and online transferred the remaining amount into 4x other bank accounts. The said 4x accounts belong to his brother Mansab Ali Khawaja (petitioner No,4), Mrs. Rafat Mansab wife of petitioner No,4 Khawaja Mansab Ali (account title is Messrs RM Traders and Messrs Meesum-Zaigham and Co) and Khawaja Meesum Ali son of petitioner No,4 Khawaja Mansab Ali (account title is Messrs Meesum Brothers and Co.). 9. The investigation further revealed that Khawaja Mansab Ali (accused No,5/petitioner No,4) is a government employee working as Head Draftsman (BPS-13), Irrigation Department, Government of Sindh. He with conscious knowledge and in collusion with his brother, Kashif Raza (accused No,4/petitioner No,3) Proprietor, Messrs Mehran Associates and in connivance with accused Nos.1 to 3 (petitioners 1 and 2) obtained illegal advance payment of Rs, 15.3 million for the "supply of mini buses and trucks" project. Buses and/or trucks were neither procured nor supplied to T&MT Department. He in collusion with his brother (accused No,4/petitoner No,3) gave Rs,10 million in bribe to accused Nos.1 to 3 (petitioners 2 and 3).
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' The investigation further revealed that accused No, 1/petitioner No,1 with conscious knowledge and in connivance with accused No,2/petitoner No,2 opened an HBL Account No,09167900241103 in the name of Secretary and Section Officer (Gen), Transport Department at Sindh Secretariat Branch using a fake "permission letter" purportedly issued by Finance Department, Government of Sindh. Accused No,1/petitioner Nos.1 and 2 in collusion with accused No,3 (Mr. Ram Chand who has now entered into a PB) collected Rs,10 million in bribe from accused No,4/petitoner No,3 and accused No,5/petitoner No,4 and deposited the same into the said HBL account. Accused Nos.1 to 3 (petitioners 1 and 2) later withdrew Rs,1 million, from the said account and could not justify its utilization. Finance Department intervened, and blocked the said account but could not succeed in transferring the balance amount, Rs,8,996,365/- into Government of Sindh account. It was after the intervention of NAB during the course of this investigation that remaining balance of Rs,8,996,365/- lying in the said HBL account was transferred back to Sindh Government Bank account. 11. From the above position, according to the reference, it stands established that loss to national exchequer has been incurred to the tune of Rs,10,488,635/- (4,105,000/ + 6,383,635/) with respect to 2x separate tenders for the procurement of "11x Heavy Vehicles" and "Supply of Mini Buses and Mazda Truck etc". Whereas, misappropriating in computers/other IT related items has incurred loss to the national exchequer to the tune of Rs,1,862,000/-. Thus, the total loss incurred to national exchequer is, therefore (10,488,635 + 1,862,000). Rs,12,350,635/- i,e. Twelve Million Three Hundred Fifty Thousands Six Hundred and Thirty Five Rupees. Hence the petitioners 1 to 4 have committed the offence of corruption and corrupt practices as defined under section 9(a) of NAO, 1999 and punishable under section 10 of Schedule thereto which lead to a reference being filed against them before the Accountability Court on 29-12-2015.. 12. Learned counsel for petitioner No,1 (Iqbal Ahmed Bablani on ad interim pre arrest bail by order of this Court dated 26-6-2015) submitted that petitioner No,1 is completely innocent in connection with the purchase of any vehicles by the T&MT Department Government of Sindh and had not embezzled any amount in respect of such purchases. 13. According to learned counsel for petitioner No,1 a purchase committee was established by Notification dated 26-3-2011 by the Transport Department Government of Sindh to purchase all items for the development schemes in accordance with Sindh Public Procurement Regulatory Authority Rules, 2005 (SPPRA). That although he was chairman of the purchase committee under the Notification the primary responsibility for keeping accounts lay with the Section Officer. Thus, if there was any shortfall in payments or non or overpayments this was the responsibility of the section officer i,e. Petitioner No,2. In any event no illegalities had taken place and in this respect he pointed to the minutes of the purchase committee dated 28-3-2011 and the subsequent tender notices and work order which showed that all codal formalities had been carried out before the procurement of the vehicles and other items. He also stressed that an internal inquiry against him had been carried out and had cleared him of any wrong doing and that no specific role had been given to him in the reference apart from receiving a bribe for which there was no evidence. 14. In support of his contentions learned counsel for petitioner No,1 placed reliance on the cases of Muzammil Niazi v. The State (PLD 2003 Karachi 526), Muzaffar Ayaz Abid Baloch v. NAB, Sindh (2008 SCMR 1316), The State and others v. M. Idress Ghauri and others (2008 SCMR 1118) and Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and another (PLD 2008 SC 438). 15. Learned counsel for petitioner No,2 (Mazhar Ali Mangi currently in custody and seeking post arrest bail) submitted that the main allegation against petitioner No,2 is that he misused his authority. However according to him he had no authority to misuse and he was simply acting on the orders of his senior officers and as such he could not be liable under the NAO for misuse of authority. His signature on the delivery challan was fake and NAB had not submitted it to a
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handwriting expert. Even otherwise he was completely innocent and was entitled to be enlarged on bail. 16. Learned counsel for petitioners 3 and 4 (Kashif Raza and Mansab Ali Khawaja both in custody and applying for post arrest bail) submitted that petitioners 3 and 4 were entirely innocent and had not been involved in any misappropriation and there were many doubts in the prosecution case and as such the petitioners were entitled to be given the benefit of doubt at the bail stage. In his bail application he had specifically contended that petitioners 1 and 2 and Mr. Ram Chand (who had since entered in a plea bargain (PB) with NAB) were involved in the misuse of authorities and embezzlement where as petitioner No,3 is a private person and petitioner No,4 works for the Irrigation Department, Government of Sindh and both have nothing to do with the affairs of the T&MT Department which lies within the domain of petitioners 1 and 2 and Mr. Ram Chand. That the petitioner No,3 was unaware of the entire transaction as his company's letter head (Mehran and Associates) had been used without his knowledge and permission and the signature was false. In essence, learned counsel for the petitioners 3 and 4 shifted the blame to petitioners 1 and 2 and Mr. Ram Chand and submitted that their case was one of further inquiry which entitled them to the concession of bail. 17. Learned counsel for petitioners 3 and 4 in support of his contentions placed reliance on the cases of Ch. Zulfiqar Ali and others v. The State (2009 YLR 1637), Ranizan Ali Hemani v. NAB (2010 MLD 75 (Karachi)) and Anwarul Haq Qureshi v. NAB and another (2008 SCMR 1135). 18. Learned ADPGA for NAB has vehemently opposed the grant of bail to all the petitioners and has submitted that NAB has more than sufficient evidence to prove the guilt of all the petitioners beyond a reasonable doubt. That the petitioners have caused a heavy loss to the national exchequer by misusing their authority and they have approached this court with unclean hands, hence they are not entitled for concession of bail and all the petitions under reply are liable to be dismissed. 19. We have heard the learned counsel for the petitioners, ADPGA NAB, perused the record very carefully and the case law cited at the bar by them. 20. At the outset it is made clear that we have only made a tentative assessment of the material placed before us and this order shall not prejudice the case of any party at trial which shall be decided by the trial court based on the evidence before it. 21. It would seem that there are a number of separate inter linked crimes contained in the reference. In our view only one of these would need to be proved to the required standard to bring home a conviction. The crimes in the reference appear to break up into the following crimes (a) procurement of 11 heavy vehicles and embezzlement (b) procurement of IT items and embezzlement (c) procurement of mini buses and mazda trucks and embezzlement. 22. In this bail application we shall concentrate on (a) procurement of 11 heavy vehicles and embezzlement and (b) procurement of mini buses and mazda trucks and embezzlement. 23. Turning to the case of petitioner No,1 (Iqbal Ahmed Bablani who is on ad interim pre arrest bail). 24. It is to be noted that he is seeking confirmation of pre arrest bail. As is well known the conditions for the grant of pre arrest and post arrest bail are quite distinct and were well set out in the case of Rana Mohammed Arshad v. Mohammed Rafique (PLD 2009 SC 427). In this case at P. 431 the following conditions need to be satisfied before pre arrest bail can be granted as set out below: "9. Even since then, the said interpretation so made, the said powers so found and the parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including this Court. But each time the matter was reexamined, the same was only re-affirmed. The said concept as it was initially propounded; as it developed and as the same stands today, may be summarized for the benefit of us all as under:--
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(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail; (c) bail before arrest can not be granted unless the person seeking it satisfies the conditions specified subsection (2) of section 497 of Code of Criminal Procedure i,e. Unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt; (d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him; (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. He had no past criminal record or that he had not been a fugitive at law; and finally that; (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i,e. The Court of Session, before petitioning the High Court for the purpose."(bold added) 25. During the hearing of his-pre arrest bail petition petitioner No,1 did not plead any of the grounds mentioned in (a) (b) (d) and (e) with ground (0 not being applicable in this case and as such prima facie he has not made out a case for pre arrest bail. 26. With regard to the authorities cited by the petitioner No,1 in our view these are all distinguishable from the facts and circumstances of the present case, Muzammil Niazi's case, Muzaffar Ayaz Abid Baloch's case and M. Idress Ghauri's case largely concerned mens rea. In our view mens rea can generally be drawn from inferences which can be drawn from the evidence at trial. In our view based on the material which has been placed before us the scams as they unfolded prima facie show mens rea on the part of all the petitioners. In Muhammad Nawaz's case bail was granted largely on account of the fact that most of the evidence was documentary in nature and there was little chance of interfering with it. This is not the case here as although there are a large number of documents there are also important witnesses who the petitioner No,1 being a senior government officer with his own connections may attempt to interfere with. Likewise the two persons who entered into PB's may yet become prosecution witnesses and may be discouraged not to do so by petitioner No,1. Furthermore, in the cases cited above a project failure was involved which failed due to poor decision making whereas in this case the project could not take place due to the embezzlement by the petitioners through their misuse of authority for personal gain, there were also medial grounds which are lacking in this case and in one case a perception that the prosecution lacked evidence which is not so in this case as we will cOme to later in this order in a brief and tentative assessment of the material placed on record. 27. A specific role has been assigned to petitioner No,1 in the Investigation Report as under: " Iqbal Ahmed Bablani, Ex-Secretary, Transport and Mass Transit Department (BPS-20). (1) The accused with conscious knowledge and in connivance with the (a) Ex-Section Officer (Gen), Mr. Mazhar Ali Mangi, and (b) Accountant, Mr. Ramchand, misused his authority by making illegal advance payment of Rs,20.475 million to Messrs Shaheer Enterprises for the procurement of 1 lx heavy vehicles. Messrs Shaheer Enterprises supplied 6x heavy vehicles only while government funds for the remaining 5x heavy vehicles were misappropriated/embezzled. He received kickbacks from the said contractor for his role in the misappropriation/ embezzlement of government funds. (2) The accused with conscious knowledge and in connivance with the (a) Ex-SO (Gen), Mr. Mazhar Ali Mangi and (b) Accountant, Mr. Ramchand misused his authority by making another illegal
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advance payment of Rs,15.3 million to M/s. Mehran Associates for the "Supply of Mini Buses and Mazda Trucks etc.". Messrs Mehran Associates neither procured nor handed over any buses and trucks to T&MT Department and the entire amount was misappropriated/embezzled. He received kickbacks from the said contractor for his role in the misappropriation/embezzlement of government funds. (3) The accused, with conscious knowledge, and in connivance with Ex-SO (Gen), Mr. Mazhar Ali Mangi opened an HBL Account No,09167900241103 in the name of Secretary and SO (Gen), Transport Department at Sindh Secretariat Branch using a fake permission letter purportedly issued by Finance Department, Government of Sindh. He, in collusion with Ex-SO (Gen) and Accountant, Transport Department collected Rs,10M in bribe from Messrs Mehran Associates. He later in cash withdrew Rs,l million from the said account and could not justify its utilization. 28. At the time of the scams petitioner No,1 was Secretary Transport. It appears from the earlier referred to Notification dated 26-3-2011 that he as Secretary Transport appointed himself as chairman of the purchasing committee which contains a rider aimed to place the blame on the SO in the event that any irregularities take place. He however in our view as Chairman of the committee must take most of the responsibility for its working no matter how the notification is drafted. ' As per minutes of the meeting which he headed on 28-3-11 during the procurement process the SPPRA Rules were to be complied with. 29. It is observed that advertisements dated 14.04.2011 for the required heavy vehicles were placed in one English newspaper the "Daily National Courier" and one urdu newspaper, "Daily K-2" both of which are relatively unknown and with a low circulation compared with other leading English and urdu newspapers. 30. The advertisements read as under: "No,SO (V)/ADP/2010-11(RDTS) GOVERNMENT OF SINDH TRANSPORT DEPARTMENT Karachi, dated 14th, April 2011 TENDER NOTICE Interested firms are invited to quality their machineries within 15 (Fifteen) days details of which are as under:- Offer forms may be obtained from the office of undersigned: 1- One Multimedia Projector 2- Three Cranes 3- Three Fold Lifters (sic) 4- Two Dumpers 5- Two Bulldozers (MAZHAR ALI MANGI) SECTION OFFICER(GEN/T-1) ' INF/KRY No,1259/11 For Secretary to Government of Sindh" 31. The lack of specificity of the vehicles/equipment required in the advertisements is quite startling and tends to indicate that little, if any, thought went into the specifications of the required vehicles/machinery such as engine capacity, make, model etc which such machinery would require for the work to be undertaken. This from the start therefore raises suspicions as to the bona fides of the transaction. The work order dated 6-5-2011 given to Messrs Shaheer enterprises which, presumably responded to the advertisements and offered the lowest bid and hence were awarded the supply contract however does not conform to the advertisements. For example, in the advertisements two bulldozers are needed however in the work order 3 bulldozers are to be supplied. Likewise in the advertisements 2 dumpers are required however in the work order 4 dumpers are to be supplied. In essence .The, advertisements do not bear any correlation to the
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work order which itself raises even more suspicions as to the bona fides of the transaction. For example, 3 cranes are advertised but none form a part of the work order. 32. In total 11 vehicles/heavy machinery was to be supplied by Messrs Shaheer enterprises for which it had been given full advance payment to the knowledge of petitioner No, 1. However only 6 vehicles/machinery were delivered and the petitioner No,2 gave a false receipt for 11 vehicles knowing full well that only 6 had been delivered. There seems also to be no justification for any advance payment to be made in a tender of this nature let alone for the full amount i,e. For the supply of heavy vehicles where payment on delivery ought to be the preferred/usual course. 33. It appears that the balance of the advance payment, which was not spent on the 6 delivered heavy vehicles, was to be split between the petitioner No,1, petitioner No, 2 and Mr. Ram Chand (Incharge of Accounts who was accused No,3 in the reference and has now entered into a PB with NAB) and Messrs Shaheer Enterprises. In acknowledgment of their guilt Mr. Ram Chand and Messrs Shaheer Enterprises have already entered into plea bargains (PB) with NAB and paid back their shares of the ill-gotten gain which they received. In our view the material placed before us leads us to the only reasonable inference as would appeal to a prudent mind that this scam was carried out by petitioner Nos. 1 and 2 and Mr. Ramchand and Messrs Shaheer Enterprises in connivance and collusion with each other. 34. This is further fortified by the role of petitioner No,1 in the second scam concerning the purchase of mini buses and mazda trucks and his connection with the HBL account in which he allegedly received bribes. Again an unjustified advance payment of Rs, 15.38 Million was made except in respect of the delivery of mini buses and Mazda trucks to Messrs. Mehran Associates which were neither procured nor supplied to the T&MT Department and the entire amount of the advance payment was misappropriated/embezzled. 35. In this case the material placed before us shows that petitioner No,1 in connivance with petitioner No,2 managed to open an account in the name of Secretary and SO(Gen), Transport Department at Sindh Secretariat Branch using a fake permission letter issued by Finance Department, Government of Sindh in which Rs, 10M was deposited from Messrs Mehran Associates. Petitioner Nos.1 and 2 and Mr. Ram Chand withdrew Rs,1 million in cash…
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