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Petitioner: SHARJEEL INAM MEMON and others VS Respondent: NATIONAL ACCOUNTABILITY BUREAU through Chairman, Karachi and others
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title:SHARJEEL INAM MEMON and others vs NATIONAL ACCOUNTABILITY BUREAU
through Chairman, Karachi and others Case No.: C. Ps. Nos. D-132 of 2018, D-7667, D-7328, D-8001 and D-8855 of 2017 Date of Judgment:2018-03-02 Reported As: 2019 YLR 1426 Result: Petition dismissed Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---Through these petitions, petitioners 1, 2, 3, 4, 5 and 6 (Sharjeel Inam Memon, Zulfiqar Ali Shallwani, Sarang Latif, Gulzar Ali, Salman Mansoor and Umer Shazad ) seek bail after arrest in National Accountability Bureau (NAB) Reference No.50 of 2016 State v. Sharjeel Inam Memon and others which was filed against them and others by NAB on 28-09-2016 for acts of corruption and corrupt practices, under the National Accountability Ordinance, 1999 (NAO). Their ad interim pre-arrest bail granted to them by various orders of this court, along with other co-accused, were recalled by this Court vide consolidated order dated 25-10-2017, hence their petitions for post arrest bail. The detailed facts of the case are more particularly set out in the reference and the consolidated pre-arrest bail order dated 25-10-2017 which should be read as part and parcel of this order . Through this consolidated order we now propose to dispose of the post arrest bail petitions filed by the petitioners. 2. It should however be mentioned that petitioner No.1 Sharjeel Inam Memon despite being arrested and taken into custody when his pre arrest bail was recalled by order dated 25-10-2015 by passed this court and moved the Hon'ble Supreme Court directly for post arrest bail which vide order dated 02-1-2018 was dismissed with the observation that he may move the relevant court if so advised. Accordingly the petitioner No.1 moved this court for post arrest bail on both merits and medical grounds. 3. The brief facts of the case as alleged in Reference No.50/ 16 State v. Sharjeel Inam Memon and others which was filed by NAB on 28-09-2016 against the petitioners and other co-accused concerned a financial scam by officials of the Information and Archives Department Government of Sindh (GOS) and various advertising agencies whereby the advertising agencies were appointed illegally and in violation of the relevant rules through a misuse of authority/failure to exercise authority by the government officials who mala fide. deliberately and in connivance with each other awarded contracts to advertising agencies at exorbitant rates which unduly benefited the advertising
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agencies who are beneficiaries in this case who acted in connivance with the government officials which lead to a colossal loss of approximately Rs. 5 Billion to the State exchequer hence the afore said reference was filed against the petitioners by NAB under the NAO on the grounds of corruption and corrupt practices. 4. These bail petitions concern two categories of petitioners. Firstly there are the Government officials who allegedly misused/failed to exercise their authority (Sharjeel Inam Memon (petitioner No.1), Zulfikar Ali Shallwani (petitioner No.2), Sarang Latif Chandio (petitioner No.3) and secondly there are the advertising agencies and their representatives who were the beneficiaries of the deliberate and mala fide connivance of the Government officials who misused/ failed to exercise their authority; representatives of Adart being Gulzar Ali (petitioner No.4) and Salman Mansoor (petitioner No.5); proprietor of Daily Milan Umar Shehzad (petitioner No.6). We will firstly deal with the case of the Government of ficials. 5. Learned counsel for the petitioner No.1 Sarjeel Inam Memon contended that petitioner No.1 was entitled to post arrest bail on two separate grounds (a) merits and (b) medical grounds. 6. With regard to merits he contended that the complaint filed by Ms. Zeenat Jehan on 06-06-2013 was not maintainable under the NAO and in any event it had nothing to do with petitioner No.1 who had only taken over as Minister of the Information Department about a week before the complaint was made and even then her section 161 statement was recorded 3 years later; that it was a case of pick and choose as the media houses who had put on air the adverts had not been made accused; that the whole appointment process was transparent and had nothing to do with the Minister who is only concerned with policy decisions; that there was no uniform rate provided by advertisers and that the Information Department had done its best to ensure that it got the most competitive rates. In this respect he placed particular reliance on a Note moved by the Federal Government Ministry of Information and Broadcasting dated 24-11-2017; that the case was based on documentary evidence; that the petitioner was no longer required for investigation; that he would not abscond as he had voluntarily returned to Pakistan to face the charges against him and for all the above reasons he was entitled to post arrest bail. In support of his contentions on merits he placed reliance on the following authorities; Maqbool Ahmed Lehri and another v. National Accountability Bureau and another (2016 SCMR 154), Saeed Ahmed v. The State (1996 SCMR 1132), Muhammad Boota v. The State (2013 PCr.LJ 318), Iftikhar -ul-Hassan v. The State (2013 PCr.LJ 1486), Manzoor and 4 others v. The State (PLD 1972 SC 81), Amir v. The State (PLD 1972 SC 277) and Muhammad Afzal v . The State (2005 PCr .LJ 1814). 7. With regard to bail on medical grounds he relied on numerous medical documents and medical reports from duly constituted medical boards which he submitted met the legal requirement of bail on medical grounds and as such in addition he was entitled to bail on medical grounds. In this respect he placed reliance on the cases of Peer Mukaram ul Haq v. National Accountability Bureau through Chairman and others (2006 SCMR 1225 ), Mian Manzoor Ahmad Watto v. The State (2000 SCMR 107), Feroze Khan v. The State (2012 MLD 1152), Bohair Qazi and others v. The State (2012 PCr.LJ 1228), Zakhim Khan Masood v. The State (1998 SCMR 1065 ), Maqsood v. Ali Muhammad and another (1971 SCMR 657), Malik Muhammad Yousufullah Khan v. The State and another (PLD 1995 SC 58), Muhammad Riaz v. The State (2006 PCr.LJ 1459), Altaf Hussain v. The State and another (2011 YLR 2228 ) Muhammad Ali Athar v. Director General NAB Punjab, Thokar Niaz Baig Lahore and 2 others (2013 PCr.LJ 58) and the Supreme Court decision in Dr Asim Hussain v. Nationa l Accountability Bureau in C . P. 2167/17 dated 29-08-2017 (unreported). 8. Learned counsel for the petitioner No.2 Zulfiqar Ali Shallwani contended that he was posted after the complaint was made; that the selection of the advertising agencies was made in a transparent manner as per SEPRA Rules; that the rates which were charged by the advertising agencies were not exorbitant; that he had not appointed the Deputy Directors as Directors; that there has been no allegation that the advertising policy was wrong; that he had no idea about the subletting of any of the contracts; that he was not aware of the payments that had been made to the advertising agencies; that he had not benefited personally from the award of the contracts and at the most it could be said that he was negligent in the performance of his duties and as such he was entitled to post arrest bail. In support of his contentions he placed reliance on the cases of Waris Meah and another v. The Slate and another
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(PLD 1957 SC 157) Mushahid Shah v. Federal Investigation Agency (2017 SCMR 1218 ) and Muhammad Nadeem Anwar v . National Accountability Bureau (PLD 2008 SC 645 ). 9. Learned counsel for the petitioner No.3 Sarang Latif Chandio contended that he was information officer billing at the time of the offenses; that in effect he was a rubber stamp who simply signed and approved all the documents which were placed before him and then forwarded them and as such he was entirely innocent of any wrong doing and was entitled to post arrest bail. Turning to the case of the advertising agencies (beneficiaries) 10. Learned counsel for petitioners Nos.4 and 5 who were representatives of Adart advertising agency (Adart) being Gulzar Ali (petitioner No.4) and Salman Mansoor (petitioner No.5) contended that with respect to petitioner No.4 Gulzar Ali he was entitled to bail on both merits and medical grounds. 11. With regard to merits petitioner No.4 Gulzar Ali contended that he was entirely innocent; that his company Adarts had provided the most competitive rates; that there was no material against him and as such he was entitled to post arrest bail. 12. In connection with bail on medical grounds in respect of petitioner No.4 Gulza r Ali learned counsel submitted that the petitioner is both a sick and infirm person who had been admitted in hospital on numerous occasions for cervical dislocation and pains and that he also suffered from diabetes. He produced various medical documents in support of his contentions. He also stated that he was an elderly man of 78 years of age and for all the above reasons he was entitled to bail on medical grounds. 13. Learned counsel for petitioner No.5 Salman Mansoor contended that he was innocent of any wrong doing; that he was a young man who had nothing to do with Adarts at the time of the commission of the offense and that during this time period he was studying abroad in Cardif f; that there was no material against him and as such he was entitled to post arrest bail. 14. Learned counsel for the petitioner No.6 proprietor of Daily Milan Umar Shehzad contended that he was completely innocent of any wrong doing; that he had only been paid the commission which he was entitled to; that there was no material against him and for all the above reasons he was entitled to post arrest bail. 15. Learned Special Prosecutor NAB submitted that with regard to merits there was more than sufficient material on record to connect all the petitioners to the commission of the offenses for which they had been charged and in this respect took the court through various documents in support of his contentions. He also relied on the finding on merit in the consolidated pre arrest bail order whereby the pre arrest bail of all the petitioners had been recalled by this court and thus for all the above reasons submitted that the post arrest bail petitions of all of the petitioners should be dismissed. 16. With regard to the medical conditions of petitioner No.1 Sharjeel Inam Memon and petitioner No.4 Gulzar Ali based on the medical related material which had been placed before this court he submitted that this did not entitle them to bail on medical grounds based on the relevant law on the grant of bail on medical grounds as they had not met the relevant legal criteria. With regard to petitioner No.1 he could be adequately treated in hospital whereas petitioner No.4 had not even produced a report on the current state of his health by a duly constituted medical board: In support of his contentions he relied on the cases of Muhammed Aslam Bajwa v. The State (PLD 2004 SC 780 ) and The State v . Haji Kabeer Khan (PLD 2005 SC 364 ) 17. We have heard the parties and have carefully gone through the documents on record and considered the medical reports and other medically relate d material placed on record and the various authorities relied upon by the parties in the light of the particular facts and circumstances of this case. 18. We would also like to make it clear that the findings in this order are only based on a tentative assessment of the material available on record and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court. General 19. At the outset, as we have done before in other similar NAB cases, we observe that cases of white collar crime are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be viewed in a holistic manner and not in isolation. This is because in most cases the offence could not be
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committed without the active involvement of all the accused in the chain of events which lead to the commission of the offense. However . notwithstanding this observation it is settled law that in cases of bail each of the accused needs in some way to be connected with the alleged offense and in the case of non-bailable offenses such as this there are reasonable grounds for believing that the accused is connected with the commission of the offense for which he is charged. 20. The current case, as with many NAB cases, is more a case of a joint criminal enterprise whereby every accused plays their role in order to achieve a criminal object all of which they were aware of and could not have been achieved without the active particip ation of all involved, resultantly a colossal loss to the tune of Rs.5 billion was caused to the national exchequer . 21. The petitioners in this case all claim that they are entirely innocent and not connected to the offence in any way. Without going into a deep appreciation of the material on record it would appear that through the investigation report and material collected by NAB which we have scanned that nearly all of the accused to a greater or lesser extent are connected to the commission of the alleged of fence. It is more a question of degree. 22. With regard to the Government officials we have also taken into consideration that they are paid and employed to serve the State/Province out of tax payers money and have a special duty to protect, safe guard and ensure that the tax payers money is well spent and not squandered needlessly or misappropriated through corruption in performing their duties/functions. 23. For offenses of corruption charged under the NAO (white collar crimes) the Hon'ble Supreme Court in the recent case of Rai Mohammed Khan v. NAB (2017 SCMR P.1152) has emphasized that the grant of bail in such cases must be construed strictly and rigidly even if, as in that case referred to above, the amount involved was on the lesser side being only approx Rs. 12M (as opposed to over Rs. 5 Billion as in this case ) in the following terms at P .1154 para 7; "Under the principle of law and justice, each bail petition is to be decided on its own merits and the law applicable thereto, however , this Court cannot remain oblivious of the undeniable fact that the tendency of corruption in every field, has become a threatening danger to the State economy , striking on its roots. The public money , allocated for social sector and economic well being of the poor people, is consistently embezzled/misappropriated at a large scale and while the majority of the popula tion is deprived of essential daily utilities, like pure drinking water , health care and education facilities, etc. It has become the foremost obligatio n of each and every institution, including the Judicator , to arrest this monster at this stage, before it goes out of proportion, posing threat to the very survival of the State and State economy , therefore, the Courts shall apply the Anti-Corruption laws somewhat rigidly , once in fact the case is made out, at bail stage, against the accused person . Distinction, however , is to be drawn between the ordinary criminal cases and of corruption on the above analysis and grounds, while dealing with bail matter to an accused person, charged for such like crimes and also at the time of conviction, once the case is proved against him then, Courts are not supposed to show any mercy by taking a lenient view in the matter of sentence." 24. Indeed, as in Rai Mohammed Khan's case (Supra) it is extremely tragic and rather ironic that the Information Department GOS is squandering billions of rupees and eating up billions of rupees in corruption associated with advertising campaigns on world water day, tinted mirrors and pressure horns, cultural festivals etc when such money could have been utilized to give genuine relief to the public on the ground in different parts of Sindh such as the provision of portable drinking water in rural areas, maintaining hospitals and schools etc which would have really improved the quality of life for many extremely poor people of this province and made an actual positive and beneficial difference to their lives. Mens rea 25. With regard to the question of mens rea a number of counsel have stressed the lack of mens rea on the part of their respective petitioners in the scam through a number of authorities and as such they cannot be held liable. The question of mens rea can very often be inferred from the facts and circumstances of the case and as discussed below based on the material before us prima facie it can be inferred that nearly all the petitioners had the requisite mens rea to commit the offense for which they are charged in the reference through their acts, conduct, failure to
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exercise authority , misuse of authority , deliberately violating the Rules and sidelining other officers to give effect to their pre-planned loot and plunder of the exchequer through an illegal and deliberate dual invoicing system operated by the advertising agencies (which we will discuss later in this order) which deliberately went unchecked by the Government officials which caused a colossal loss to the exchequer . The final determination of mens rea in respect, of each of the petitioners will, in any event, be decided by the trial court after hearing all the evidence in the case. Dealing with the petitions on merit. 26. When we recalled the pre-arrest bail of the petitioners vide our order dated 25-10-2017 we dealt with each case of the petitioners in detail on merits and found that there was sufficient material on record to connect the petitioners to the offense for which they had been charged. Following the case of The State v. Zubair (PLD 1986 SC 173) the petitioners must show some new ground for their bail application or a ground which was not available at the time when their pre-arrest bail was argued. 27. It is extremely doubtful that any of the petitioners have been able to produce any new ground or been able to rely on any material which they were not aware of at the time when their pre-arrest bail was recalled (apart from petitioners Nos.1 and 4's medical ground which we will deal with later in this order) but have simply repeated in large part their arguments at the pre-arrest bail stage which have already been dealt with in that order . 28. In the case of petitioner No.1 Sharjeel Inam Memon we have already found that Ms. Zeenat Jahan's complaint was entertainable under section 18 of the NAO especially as at Para 3 it referred to financial corruption in the information department. A complaint to NAB, like an FIR, only gets the ball rolling in a criminal inquiry/investigation and like an FIR where it leads to after inquiry/ investigation and the collection of evidence is another matter . In this case it lead to the petitioners and the filing of a reference against them for corruption; the selection process was not transparent; SEPRA Rules were violated; the question of there being no fixed rates for advert s has already been addressed and rejected by us in our earlier order rejecting pre-arrest bail. For example, if say 20 2 minute slots were required to advertise the "Misconception on family planning" in our view the fairer and more transparent option was for each of the so called pre-qualified advertising agencies putting in their sealed bids after taking account of their own bulk discounts,credit notes and even reduction in their 15% commission so that the lowest bid could have been considered; the invoices on record clearly show the corruption by the advertising agencies and the petitioners from the information department through the system of dual invoicing which caused a loss to the GOS; it was not a case of pick and choose i.e. the media houses who aired the adverts were not included in the reference as they gave genuine invoices whereas the dual invoicing was adopted by the advertising agencies in connivance with the co-accused (including the Government official petitioners) in the information department which caused a colossal loss to the Government of Sindh. With regard to the authorities cited by him we consider that they are of little, if any, assistance to him based on the particular facts and circumstances of this case. 29. With respect to the case of petitioner No.2 Zulfiqar Ali Shallwani we have already found that the SEPRA Rules, were violated; that the award of the advertising contracts were on a non-transparent basis; that the rates of payment were exorbitant; that he deliberately allowed the Deputy Directors to perform the function of Director without any lawful authorit y and thereby he willfully failed to exercise his authority and the fact that he allowed this practice to continue for so long under his nose clearly shows that it was not a case of negligence but was deliberately done/ allowed by him to favour the advertising agencies; he was a senior and experienced bureaucrat and being secretary would have known about the illegal subletting of contracts as he was part of the committee which selected the original 10 pre-qualified advertising agencies which did not include the sub-letter; that he was posted as secretary throughout the time when these illegalities took place. Furthermore, his contention that the process of awarding contracts to adverting agencies was transparent is completely destroyed by the following chain of documents/events. On 02-12-2013 the adverting agencies were selected at a meeting which he attended and was a signatory , on 17-04-2014 the selected adverting agencies were duly informed of their selection however on 12-12-2013 before the adve rtising agencies had been informed of their selection the petitioner has signed and approved the payment of a bill to one of the selected adverting agencie s apparently before it had even
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been informed that it was selected for crores of rupees. There are also other bill approval letters on record signed by the petitioner prior to the advertising agency being informed of its selection on. 17.04.2014 and as such this was not an isolated incident. This clearly shows that the whole selection process was a facade and was a managed affair and that petitioner Zulfiqar Ali Shallwani was fully involved in it and knew all about the payments made to the advertising agencies and the amounts paid (which he approved) especially as under the Rules of Business he was the Chief Accounting Officer for the Information Department. We also find that the authorities relied upon by him are of little, if any , assistance to him based on the particular facts and circumstances of this case. 30. With respect to the case of petition er No.3 Sarang Latif we have already found that he was an experienced BPS 17 officer who was fully aware of his responsibilities to check and verify the bills which he deliberately failed to do and thereby willfully failed to exercise his authority . We have been shown at least 8 bills bearing his signature which were approved by him without being checked or verified. If he had checked and verified them then the scam of dual invoicing would have been uncovered. 31. With respect to the case of petition er No.4 Gulzar Ali we have already found that he was a Director of Adart throughout the reference period; he was a majority shareholder of Adart; he signed agreements on behalf of Adart; he operated bank accounts on behalf of Adart and that he illegally massively overcharged the GOS for works carried out by his illegal sub-contractors. 32. With respect to the case of petitioner No.5 Salman Mansoor we have already found that that he wrote directly to the Minister (petitioner No.1) in his capacity as Media Manager for Adart on a number of occasions. For example, on 28.05.2014 in respect of media campaign in order to raise awareness of child marriage Bill, on 29.05.2014 in connection with media campaign to combat law and order situation in Sindh, on 06-06-2014 in respect of media campaign for awareness of women and child protection Bill which all indicate that he had a number of meetings with the Minister and was fully involved in the procurement of business for Adart. (IR P.605,612, 619).This material totally belies his claim that he was outside of Pakistan studying in Cardif f and had nothing to do with Adarts during the period when the offenses were committed. He signed on Adart letter head, under the title media manager and was also a director of Adarts. 33. With respect to the case of petitioner No.6 Umar Shazad we have already found that he was an illegal sub- letee of Adart. He was not on the GOS pre-qualified list of approved advertisers. By his own admission he established his business in 2013 and his first contract was the one…
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