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Petitioner: GHULAM HAIDER JAMALI and others VS Respondent: CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Muhammad Karim Khan Agha Title:GHULAM HAIDER JAMALI and others vs CHAIRMAN, NATIONAL
ACCOUNTABILITY BUREAU, ISLAMABAD and others Case No.: C. Ps. Nos,D-4672, D-2755 of 2016, D-3286, D-2652 of 2017 and 2226 of 2018 Date of Judgment:2018-05-11 Reported As: 2019 MLD 884 Result: Order accordingly Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---By this order we propose to dispose of the above mentioned petitions filed on behalf of petitioners Ghulam Haider Jamali, Ghulam Nabi Keerio, Mir Muhammed Abrejo, Ghulam Raza Solangi, Raja Ishtiaq Ahmed, Abdul Qadir Kathother and Ayaz Hussain Memon for confirmation of their pre-arrest bail granted to each of them through various orders of this court and the petition for post arrest bail filed on behalf of petitioner Syed Fida Hussain Shah in National Accountability Bureau (NAB) Reference No,11 of 2017 State v. Ghulam Haider Jamali and others who are alleged to be involved in corruption and corrupt practices under the National Accountability Ordinance, 1999 (NAO). 2. The brief facts of the case are that that on receipt of complaint regarding illegal recruitment/appointments of Constables in Sindh Police by the Officers/Of ficials of Sindh Police, an inquiry was authorized on 29.12.2015 by Director General NAB Karachi and subsequently by the Chairman NAB. During the course of inquiry allegations of illegal appointments were substantiated, hence inquiry was converted into investigation. 3. That during the course of investigation it revealed that in the years 2013-14 and 2014-15 illegal recruitment/appointments of Constables, Junior Clerks, Computer Operators, and other menial staff were made in Sindh Reserve Police Base Hyderabad. The Hon'ble Supreme Court of Pakistan had also taken notice of the above mentioned illegal recruitment/appo intments and constituted a committee comprising of senior police officers, vide order dated 23.12.2015 passed in HRC No, 16082-S of 2015. The said comm ittee submitted its interim report before the Hon'ble Supreme Court of Pakistan and the said report was forwarded by the Hon'ble Supreme Court of Pakistan to NAB for inquiring into the matter . 4. In essence the allegations against the petitioners who at the time of the commission of the offense were nearly all senior Sindh Police officers is that they in connivance with each other misused/failed to exercise their authority
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in making hundreds of illegal appointme nts/recruitments in the Sindh Reserve Police (SRP) from constables, clerks, computer operators and other menial staff in the years 2013 to 2014 and 2014 to 2015 which illegally favored/benefited those recruited/appointed and caused a colossal loss to the national exchequer through the payments of salaries amounting to Rs,504,661,664. Such appointments made by the petitioners were not in accordance with the rules, was manage d, was not on merit, without physical test, measurement, written tests, interview , and based on managed lists of applicants in order to favor blue eyed boys. 5. Thus, on account of the above misuse of authority/failure to exercise authority by the petitioners which favored others and caused a colossal loss to the exchequer the aforesaid reference was filed by NAB against the petitioners on 23.3.2017 before the acco untability courts in Karachi for acts of corruption and corrupt practices under S.9 NAO. 6. Learned counsel for Ghulam Haider Jamali , who at the time of the offense was IGP Sindh, submitted that the case against him only concerned recruitment of police constables and not any other police staff and that he had nothing to do with any illegal recruitment of police constables from 2013 to 2015; that he was not the appointing authority which under the police rules was the ASP and DSP; that there was no material on record to show that he had regularized or legitimized any of the appointments; that he had not sanctioned the payment of the salaries to the constables who had been recruited which had been done by the Chief Minister; that he could not be held responsible for any recruitments in 2013 to 2014 since he was not IGP during this period as he became IGP from September 2014 onwards until March 2016; that when he became aware of the illegal recruitments he requested Khadim Hussain to inquire into the matter and that for all the above reasons his pre arrest bail should be confirmed. The malafides of NAB was including him in the reference when he had nothing to do with the recruitment of the police constables. 7. Learned counsel for Syed Fida Hussain Shah who at the time of the offense was AIGP Finance Central Police office Karachi and is seeking post arrest bail submitted that for the two recruitment periods he only had potential liability for the period 2014 to 2015 as he was not posted as AIGP Finance for the earlier period; that he had nothing to do with the recruitment of the constables and was not the appointing authority; that he released payment to them based on the orders which he received from the then IGP petitioner Jamal i and not on his own motion and in this respect he placed reliance on the Chief Minister's summary which authorized payment of the officers; that in effect no loss had been caused to the exchequer as the salaries were paid on account of work done by the constables who had now all been dismissed and as such he was entitled to post arrest bail. In support of his contentions he placed reliance on Zaigha m Ashraf v. The State and others (2016 SCMR 18), Muhammad Asif and others v. Government of Sindh through Secretary Finance Department and Information Technology Department, Sindh and 4 others (2017 PLC (C.S.) 42), Sarfaraz Ahmed and another v. The Chairman National Accountability . Bureau (NAB) through Chairman and others (2016 PCr.LJ 79) and Hafeezullah Abbasi v. The Director General NAB Karachi and another (Civil Petitions Nos, 1542 and 1709 of 2017 un-reported). 8. Learned counsel for Ghulam Nabi Keerio who at the time of the offense was SP SRP Hyderabad admitted that the petitioner had made the appointments but submitted that he had the power and authority to do so under the Pakistan Police Rules, 1934 and thus did so legally; that the Inquiry committee and NAB had based their case of illegal recruitments on Standing Order 213/2007 dated 11-06-2007 (the SRO) which had lapsed and was no longer in the field. According to learned counsel the ignoring of the police rules and reliance on the lapsed SRO showed the complete mala fides on behalf of the NAB investigators as they must have been aware of this legal position; he also placed reliance on a letter dated 18-05-2015 which concerned the release of payment to Naib Qasids etc. which showed that even AIGP Finance considered that the recruitment of such persons had been legally carried out; that alternatively even if the SRO had not lapsed he had full power and authority to make appointments under the SRO; for the 2013 recruitments he constituted and headed the committee and in the 2014 recruitments the committee was headed by him which was constituted by the DIG on the orders of IGP Jamali who is also a petitioner in this' case; that in making the recruitments all required rules and codal formalities were complied with; that there was no material on record to connect him to any offense under the reference and as such
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his pre arrest bail should be confirmed. He placed reliance on Jamil A.Durrani v. The State (PLD 2003 Kar. 393) and the other cases relied on by petitioner Fida Hussian Shah as mentioned above. 9. Learned counsel for Mir Mohammed Abrejo who at the time of the offense was DSP SRP Hyderabad and Raja Ishtiaq Ahmed who at the time of the offense was RI SRP Hyderabad denied that they were members of the 2013-2014 selection committee and that that the petitioners were only members of the 2014-2015 selection committee and that initially they refused to take part in the selection committee which they knew was illegal but were coerced into doing so by petitioner Ghulam Nabi Keerio. According to them when they complained about the illegal appointments that were to be made they were issued show-cause notices by petitioner Keerio which led to their dismissal from service thus through coercion they participated in the selection committee and followed the illegal orders of their superior on the committee namely petitioner Ghulam Nabi Kee io and recommended the illegal appointments contrary to the rules . According to the petitioners they had stated this to the NAB when their statement was recorded. Learned counsel for Ghulam Raza Solangi who at the time of the offense was Line officer SRP Hyderabad and Abdul Qadir Kathohar who at the time of the offense was MTO SRP Hyderabad submitted that although they were a part of both selection committees (2013-2014 and 2014-2015) like petitioners Mir Mohammed Abrejo who at the time of the offense was DSP SRP Hyderabad and Raja Ishtia q Ahmed they were coerced by petitioner Keerio into making the illegal appointments contrary to the rules. In essence they adopted the same arguments as petitioners Abrejo and Ahmed mentioned above and as such all the petitioners submitted that their pre arrest bail should be confirmed. In support of their contentions they placed reliance on Maqbool Ahmed Lehri v. NAB ( 2016 SCMR 154 ), Muhammed Akhtar Shirani v . Punjab Text Book Board ( 2004 SCMR 1077 ). 10. Learned counsel for Ayaz Hussain Mem om who at the time of the offense was Junio r Clerk/Accountant SRP Hyderabad submitted that he was innocent of any wrong doing ; that there was no material on record to connect him to the offense; that he played no role in the recruitment process of the police constables and other officials; after receiving their appointment orders he simply prepared the list of appointed policemen whose salaries were released after approval of the competent authority; that he had been included in the reference by NAB on account of no evidence which amounted to mala fide on the part of NAB and for all the above reasons his pre-arrest bail should be confirmed. 11. Learned special prosecutor NAB vehemently opposed the confirmation of pre arrest bail to each of the petitioners who had applied for the same which he submitted should be recalled: He also submitted that the post arrest bail petition of Syed Fida Hussain Shah should be dismissed. In support of his contentions he took the court through various documents on record which showed there was sufficient material on record to prove that all the petitioners were connected with the offense for which they have been charged. He also submitted that there was no mala fides on the part of NAB. 12. We have heard the parties and have carefully gone through the record and considered the relevant law and case law cited by them. At the outset we are of the view that the authorities cited by the learned counsel for the petitioners are of little, if any , assistance to them based on the particular facts and circumstances of this case. General 13. 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 not a deep appreciation of such material and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court. 14. 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 committed without the active involvement of all the accused in the chain of events which lead to the commission of the of fense. 15. With regard to the police 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 fiduciary 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 in this case through illegal appointments in the police which not only
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causes massive loss to the national exchequer; was discriminatory in nature contrary to Article 25 of the constitution and by not recruiting on merit reduced the professional abilities and capabilities of the Sindh Police in order to fight crime which had the knock on effect of depriving the public of the proper and professional police protection which they were entitled to for the protection of their life and property as guaranteed under Article 9 of the Constitution. As was noted earlier by the Supreme Court in the Suo Motu case dealing with the law and order situation in Karachi the politicization of the police force in Karachi was a factor in not being able to adequately combat the law and order situation and is one of the reasons why the Sindh Govern ment for the last so many years has had to call upon the Pakistan Rangers in order to assist them in maintaining the law and order situation in Karachi. Recruitment without merit in a professional service such as the police both undermines' that service, its independence and the public's confidence in that service and the ability of that service to serve the public effectively especially in respect of security issues in the testing times which. Karachi and the province of Sindh are now currently subject to in the so called war on terror . We have also taken into consideration the respective ranks and level of experience of the respective police officer petitioners who in many cases held senior positions which carried additional responsibilities. 16. We have concentrated on the alleged illegal appointment of police constables as opposed to menial staff such as cooks, computer operators etc 17. For offenses of corruption charged under the NAO (white collar crimes) the Hon'ble Supreme Court in the 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 500M as in this case ) and as such we have followed this approach. 18. A number of the petitioners have pled that since the allegedly illegally recruite d constables were only paid for the work they did there has been no loss to the Government and as such the NAO is not applicable. We disagree with this point of view as the misuse of authority and/or failure to exercise authority was deliberately made to unduly favour/benefit other undeserving persons by giving them jobs which may have been given to other more deserving persons if the recruitment process had been based on meritocracy and had been made as per the recruitment rules. In this respect reliance is placed on an unreported order of the Supreme Court dated 09.06.2017 in Civil Petition No,1876 of 2017 Karamuddin Panhyar v. Federation of Pakistan where it was held in a NAB case for post arrest bail that, "No loss to the State is not a ground alone on the basis of which concession of bail is to be extended to an accused". Findings on mala fide. 19. It is now well settled law that pre arrest bail is an extraordinary relief and is only available ix cases where there has been mala fide on the part of the complainant or the police. In this regard reference may be made to the case of Rana Mohammed Arshad v. Muhamme d Rafique (PLD 2009 SC 427) and the more recent Supreme Court case of Mukhtar Ahmad v . The State and others ( 2016 SCMR 2064 , relevant page 2066). 20. In this case only petitioners Ghualm Haider Jamali, Ghulam Nabi Keerio and Ayaz Hussain Memon have pleaded mala fides. We find no substance in this contention of mala fides as pleaded by petitioner Ghulam Haider Jamali and Ghulam Nabi Keerio althoug h there may be slight hints of mala fides in respect of petitioner Ayaz Hussain Memon by NAB in including him in the reference due to his very minor and perhaps unknowing role in the alleged of fense. Findings on Merit. 21. Turning to the case of petitioner Ghulam Nabi Keerio who at the time of the offense was SP SRP Hyderabad. The petitioner , like all the other petitioners, has been given specific roles in the reference at Para's 3, 4, 5, and 8 which for the sake of brevity will not be reproduced here but which can be found in the reference. 22. In essence it has been alleged that he played a pivotal role in the illegal appointments of the police constables in both 2013 to 2014 and 2014 to 2015. The record reveals that the SRO as referred to above and as renewed by Order dated 27-07-201 1 in governing the recruitment of police constables in similar terms was the lawful order to be followed for the recruitment of police constables (as sent to amongst others the DIGP Hyderabad Range) and
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not the police rules. This order provided for minimum education qualifications, physical fitness test, a recruitment authority to be headed by a DIG, advertisements for the posts in 3 particular newspapers, a written test, final interview , medical fitness, verification of character and antecedents and with the prior approval of the IGP to ensure transparency and meritocracy in the recruitment of police constables. 23. The record reflects that petitioner Keerio was posted as SP Hyderabad on 11-10-2013 and on the same day constituted a selection committee headed by himself and not a DIG as per recruitment process; that on 12-10-2013 (the next day) he allegedly placed recruitment advertisements in two low circulation news papers Daily Halchal and Daily Sarmaya which were not the news papers specified in the recruitment process (in fact these advertisements were never published as per 5.161 statements of the Editors of these newspapers Muhammed Youths and Ehsan Ul Haq and were managed to hide the illegalities in the recrui tment process; reference in this regard can also be made to the S.161 statement of Roshan Tabassum Director Press Information Department); that on 14-10-2013 (2 days after , the advertisement were allegedly made) the selection committee headed by petitioner Keerio met which included petitioners Solangi and Kathohar and appoin ted 380 constables on the same day by 3 separate batches. There is no record of any tests, physical, written or otherwise being carried out or interviews being made (in this regard reference may be made to S.161 statement of Abdul Hamid Khoso). All those recruited were matric, 5.5" in height and had chests of 3-34 and half inch which clearly shows that the whole recruitment process was a charade in order to appoint favorites or accommodat e a pre existing list of persons. Reference to S.161 statements of Muhammed Hanif Shah and Irum Awan who later inspected the appointees and found a number not able to meet chest requirements, height requirements, or age requirements further fortifies the above conclusion. S.161 statement of Abdul Hameed Khoso reflects that the recruitment was above the available vacancies and available finance and was not carried out in a transparent manner . The appointments were signed by all members of the Committee (petitioners Keerio, Solangi and Kathohar). Petitioners Solangi and Kathohar (both of whom have been given specific roles in the reference) whose case is dealt with next have both candidly admitted that the appointments were illegal and that they took part in the appointment process as committee members on account of pressure and coercion imposed on them by Keerio who was their senior officer. On 12-11- 2013 petitioner Keerio wrote to the IGP (one month after the appointment of the 380 constables) informing Mm of the appointments and requesting release of their salaries. These appointments had not been made with the approval of the JGP. Based on the above time line and discussion it would appear that petitioner Keerio was the mastermind behind the illegal appointments of 380 police constables in 2013 to 2014 through his misuse of authority/failure to exercise authority which ultimately caused a colossal loss to the exchequer through the payment of these illegally appointed police constables' salaries through the worst kind of nepotism and favoritism and as such the pre arrest bail granted in respect of petitioner Ghulam Nabi Keerio is recalled with immediate effect. With regard to petitioners Solangi and Kathohar . through their own admissions they were fully involved in and fully aware of this illegal recruitment of police constables. The fact that they tried to avoid the situation and were merely following the illegal orders of their superiors under pressure is no defense under the law as was held in the cases of Muhammed Asghar Khan's case (2013 PLD SC 1) and Syed Mahmood Akhtar Rizvi v. Federation of Pakistan (PLD 2013 SC 195) and as such the pre arrest bail granted to Ghulam Raza Solangi and Abdul Qadir Kathohar are recalled with immediate effect. 24. With regard to petitioner Ghulam Haider Jamali who was IGP from September 2014 onwards although he was not directly involved in the recruitment process in 2013 to 2014 petitioner Keerio wrote to the IGP (petitioner Jamali) on 22-12-2014 (which should have been routed through the concerned DIG) by reference to the aforesaid letter dated 12-11-2013 informing him of the recruitment of the constables in 2013 and requesting for the sanctioning of the said posts and the release of their monthly salary . This letter clearly shows that petitioner Jamali knew about the illegal appointments in 2013 which had not been sanctioned by the IGP and did nothing about it. Likewise a note sheet which is signed by petitioner Fida Hussain Shah on 02.05.2015 and petitioner Jamali clearly shows that petitioner Keerio had made excess appointments in 2013 and requested for the release of their salaries which was approved by petitioner Fida Hussain Shah and petitioner Jamali who in effect legalized these illegal appointments of petitioner Keerio in 2013 which led to them being paid salaries. In fact by
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letter dated 02-02-2015 petitioner Fida Hussain Shah wrote to petitioner Keerio requesting him to complete the recruitment process and forward salary proforma's. Such approval of posts and payment of salaries without prior sanction of the posts was completely illegal as per general instructions contained in circular dated 11-07-2014 which reads as per 5(q) "No appointment or transfer / postings may be made against the post reflected in the SNE(New) 2014-15, until and unles s formal communication for release of Budget Grant for such posts is issued by Finance department". In this case the recruitment of the police constables was made on 20.4.2014 before the sanction on 08.01.2015 and as such was completely illegal. When Dr. Aftab Ahmed Pathan (who can be regarded as a whistle blower in this case) .the then DIGP/Commandant SRP complained to IGP Jamali about these illegal recruitments (See S.161 statement of Dr. Pathan and his letters to the IGP on this issue dated 27-07-2015 and 24-08-2015) he was transferred from his post by IGP Jamali which in our view does not seem to be a coincidence but rather IGP Jamali trying to cover up his misuse of authority by giving ex post facto approval to the illegal appointments and payment of salaries to the illegal appointees and punishing Dr. Pathan for officially reporting the same which left him with no option but to open an inquiry into the matter on 24-08-2018 nearly 2 weeks after Dr. Pathan had first reported the matter and on the same date as Dr. Pathan lastly reported the matter which in our view appears to be a smoke screen to cover himself from the fall out of any potential illegal appointments which he played a part in. 25. On 05-09-2014 petitioner Keerio requested DIGP SRP to sanction 320 more posts for police constables to establish a sub base of SRP at District Shaheed Benazirabad (not withstanding his earlier 380 illegally recruited police constables in 2013-2014). By letter dated 18-11-2014 petitioner Fida Hussa in Shah wrote to the Secretary Home Department stating in effect that the Finance Department has provided 10,000 posts through SNE (New) 2014-2015 stating that the 360 posts have already been filled in 2013 by petitioner Keerio through "internal arrangements" requesting that the finance department be allowed to release 421 posts as requested for creation of SRP base at Shaheed Benazirabad. On the same date the IGP Jamali approved this letter and notwithstanding the illegal recruitments by petitioner Keerio in 2013 IGP Jamali established a second recruitment committee for 2014 to 2015 to be headed by petitioner Keerio (as opposed to a DIG as per recruitment…
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