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Petitioner: MUHAMMAD HANIF and others VS Respondent: CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Director-General SIndh
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Muhammad Karim Khan Agha Title:MUHAMMAD HANIF and others vs CHAIRMAN NATIONAL ACCOUNTABILITY
BUREAU through Director-General SIndh Case No.: Constitutional Petition Nos. D-1965, D-1963, D-2604 and D-2891 of 2018 Date of Judgment:2018-05-14 Reported As: 2019 P Cr. L J 1277 Result: Order accordingly Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---By this common order we propose to dispose of the above mentioned petitions for post arrest bail which have been filed by petitioners Muhammed Hanif, Asim Amir Khan Sikander , Syed Masood Hashmi on merits and Sharjeel Inam Memon on medical grounds. The pre arrest bail petitions of all the petitioners were recalled by this court vide order dated 25.10.2017. The post arrest bail on merits in respect of petitioner Sharjeel Inam Memon was dismissed by this court vide order dated 02-03-2018. 2. The brief facts of the case are that following inquiries/ investigations conducted against the petitioners and the other co-accused by the National Accountability Bureau (NAB) in relation to acts of corruption and corrupt practices falling within the purview of section 9 of the National Accountability Ordinance, 1999 (NAO) NAB filed Reference No.50/1-6 State v.Sharjeel Inam Memon and others on 28-09-2016 against the petitioners and other co-accused in connection with a 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 agencies who are beneficiaries in this case who acted in connivance with the government of ficials which led to a colossal loss of approximately RS 5 Billion to the State exchequer . 3. Petitioner Sharjeel Inam Memon was the Minister for Information and Archives Department (GOS) who along with other official co accused allegedly misused their authority/failed to exercise their authority in order to unduly benefit certain advertising agencies and has approached this court on the ground of medical bail only. Whereas petitioners Muhammed Hanif and Asim Amir Khan Sikander were employees of one of the main beneficiary advertising agency Evernew Concepts Pvt. Ltd. which was headed by co-accused Inam Akbar whom we have
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already found to be the master mind behind this act of corruption in so far as it related to Evernew Concepts through our pre arrest bail order recalling his and the other petitioners and co-accused pre-arrest bail as referred to earlier in this order . Petitioner Syed Masood Hashmi was the owner of Orient Advertising Agency which was also one of the main beneficiaries of the scam. 4. Learned counsel for petitioner Muhammad Hanif submitted that he was not subject to the NAO as he was an employee of a private company and in this respect he was covered by the Companies Ordinance for any wrong doing. In support of his contentions he placed reliance on numerous sections of the Company Ordinance, 1984 and the case of Chairman NAB v. Fehmida Begum (2015 SCMR 172); that his role was confined to operating the accounts of Evernew Concepts which authority had been given to him through a Board resolution and as such he operated the accounts on the instructions of the directors in good faith; that he had no idea that the funds which he transferred were the proceeds of crime; that he had not made any personal benefit and for all the above reasons he should be granted post arrest bail. Learned counsel for petitioner Asim Amir Khan Sikander conceded that the NAO was applicable to him however like petitioner Muhammad Hanif mentioned above he submitted that he was an employee of Inam Akbar who was the owner of the company , the key player and main beneficiary and he like petitioner Hanif operated the accounts on his instructions; that he had no idea that the monies which he had transferred were proceeds of crime and he had made no personal gain and thus for all the above reasons he was also entitled to post arrest bail. 5. Learned counsel for Syed Masood Hashmi mainly contended that the petitioner was prepared to deposit the amount which NAB claimed was his liability with the NAB and on this basis he should be granted post arrest bail. In this respect he referred to various authorities including, and on similar lines, to Shamraiz Khan v State (2000 SCMR 157), Nisar Ahmed Dina v. The State (2005 SCMR 1875 ), Mohammad Rashid Umar v. The State through Chairman NAB (SBLR 2012 SC. 78) Syed Muzaffar Ali v. Chairman NAB (2016 PCr.L.J 1183) and Ehsanullah Shah v. NAB unreported Supreme Court case dated 24.04.2018. He also submitted that his case was on a better footing than the other adverti sing agencies who were co-accused in the reference as at least he had provided some documents in support of his claims when he invoiced the GOS whilst none of the other co-accused advertising agencies had done so. Thus, for the above reasons he was entitled to be granted post-arrest bail. 6. Learned counsel for petitioner Sharjeel Inam Memon who had approached this court only for the grant of bail on medical grounds in this respect relied on the reports of various medical boards which showed that he satisfied the legal requirements for the grant of bail on medical grounds. 7. 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. 8. With regard to medical bail in respect of petitioner Sharjeel Inam Memon he submitted that the medical reports did not show that he met the legal requirements for grant of bail on medical grounds and as such his petition for bail on medical grounds should also be dismissed or in the alternative he may be confined to hospital and not released on medical bail. In this respect he placed reliance on Muhammad Arshad v. The State and another (1997 SCMR 1275 ) and The State v . Haji Kabeer Khan (PLD 2005 SC 364 ). 9. 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. 10. 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 the same and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court. 11. We regard to the argument of petitioner Muhammad Hanif that since he was only a humble employee of the company under the NAO he could not be liable we completely reject this contention. This is because in the case of
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Abdul Aziz Memon v. State (PLD 2013 SC 594) it was explicitly held by the Hon'ble Supreme Court that the word, "person" as defined in the NAO applied to all persons including private persons. Persons who commit white collar crime are generally cunning and crafty in their modus operandi notwithstanding the fact that it is difficult enough to gather evidence in white collar crimes. If employees of companies were excluded from the purview of the NAO this would enable persons who committed corruption and were liable to be proceeded against under the NAO to be by design deliberately placed on junior positions within the company or as humble employees so that their acts of corruption in league with others would not fall under the NAO which may defeat the legislative intent and judicial interpretation of the NAO. Such novel, clever and devious tactics cannot be allowed to flourish. Section 4, NAO also needs to be kept in mind which applies to all citizens in Pakistan. 12. Otherwise with regard the cases of Muhammad Hanif and Asim Amir Khan Sikander although there is material on record to show that they operated the bank accounts of Evernew Concepts and even transferred funds to Inam Akbar's private bank accounts and other companies owned by him we have taken into account the fact that they were relatively minor players in the scam which was orchestrated by Inam Akbar who was the de jure and later defacto head of Ever new Concepts and the main beneficiary of the scam; that they were acting on instructions of the Directors of the company; that they appear to have made no personal financial gain; the fact that they have already spent approx 6 months in jail would also tilt the balance in favour of the grant of bail and as such they are granted post arrest bail subject to them each furnishing solvent surety in the sum of I.5 M (fifteen lacs each) and PR bond in the like amount to the satisfaction of the Nazir of this court. The names of both the petitioners shall also be placed on the ECL. 13. With regard to the case of Syed Masood Hashmi he has submitted that he is prepared to pay the amount of the alleged loss to the Chairman NAB pending the outcome of the trial. This is not a new ground and was rejected by this court through its aforesaid consolidated order recalling the petitioners pre arrest bail at Para 93. With regard to Shamraiz's Khans case (Supra) which is the foundational case, which the petitioner relies on, this case is distinguishable based on the particular facts and circumstances of that case. In Shamraiz's case (Supra) the petitioner had deposited virtually the whole amount of misappropriated funds to the Food Department who he had allegedly embezzled it from. i.e. he had returned the money . Whereas in this case the petitioner wants NAB to hold the amount in trust for him until conclusion of the trial and then if he is acquitted return the amount to him. This is a major difference and makes the cases and even the principle relied on in Shamraiz Khan's case (Supra) distinguishable. Even otherwise in Shamraiz Khan's case (Supra) 17 other co-accused had already been granted bail which is not the case in this reference. In our view if the amount is relatively minor in nature there may be some scope for such an approach to be adopted provided that NAB has no objections. For example, in Muzaffar Ali's case (Supra) NAB had no objections. Otherwise we are of the considered view that by allowing such deposits to effect be held in trust by NAB or the Nazeer of this Court until the outcome of the trial would to a certain extent amount to circumventing the provisions of voluntary return and plea bargain as provided in section 25, NAO and thereby defeat the legislative intent as other accused and particularly beneficiaries are likely to adopt such an approach. In the recent case of Fida Hussain Shah v. NAB and others (C. P. No. D-1904 unreported dated 19-06-2017) this court rejected a similar proposal (and although Fida Hussain Shah was later granted bail in the aforesaid case by the Hon'ble Supreme Court it was not on account of him depositing any funds with the court but on other considerations) and thus we need to be consistent in our approach. It is also significant that in this case four other accused beneficiaries entered into VR with NAB prior to the filing of the reference. If those illegal beneficiaries would have known that they could pay their illegal gain into a deposit account pending finalization of the trial this would have most probably been the route which they would have taken. Thus, this is a precedent which we would not like to set. Furthermore the petitioner in this case was a major beneficiary who was directly involved in the scam . Ehsanullah's case (Supra) is distinguishable because in that case the petitioner had already spent almost 3 years in jail and the conclusion of the trial was not within sight which is not the position in the petitioner's case. As such his request to deposit the amount of his liability is declined. He may, if so advised, apply for plea bargain under section 25, NAO.
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14. In this reference we found in our consolidated pre arrest bail order that there was deliberate and mala fide misuse of authority/failure to exercise authority in violation of the relevant rules and regulations by the Government officials in connivance with the beneficiaries which caused a massive financial gain to the beneficiaries and a huge loss to the government exchequer . 15. There is both a general allegation in the reference against all the advertising agencies (including the petitioner) as well as a specific one. The general one which is found at Para 4 of the Reference reads as under: "Para 4. That the investigation also reveals that advertising agencies suppressed the invoices issued by the media channels which had showed the actual amounts, with ulterior motives and mala fide intention in connivance with the officials of Sindh Information Department and claimed much higher amounts as compared to the amounts invoices issued by the media channels. Whereas, as per well settled practice, advertising agencies are entitled to get only 15% agency commission against the total bill/invoice received from the media channel. (bold added) 16. At the outset it is both pertinent and relevant to observe that 4 other Media/advertising companies (Messrs Connect Marketing Pvt. Ltd., Messrs Value Added Marketing Services Pvt. Ltd., Messrs Xnine Pvt. Ltd. and Messrs Sync Advertisement Pvt. Ltd.) all of whom had allegedly been illegally awarded advertising contracts in violation of the Rules by the Ministry of Information and who had all over charged the Ministr y of Information and were faced with the same allegations as the petitioner in the reference by using the same modus operandi all admitted their guilt and entered into voluntary returns with the NAB whereby they repaid their ill gotten gains. 17. Apart from his general role of suppres sing invoices the petitioner has also been given a specific role at Para 12 of the reference which reads as under; "12. The investigation further reveals that Accused No.13 Syed Masood Hashmi is CEO/Director/overall owner of the advertising agency of Messrs. Orient Communication Pvt. Ltd. (Orient), which received Rs.320 Million from Sindh Information Department against release of advertisement campaigns on Electronic Media (FM/TV). He obtained invoices on the exorbitant rates from the media and same amount was claimed from the Sindh Information Department, but he got speci al discounts/credit notes in addition to 15% agency commission from the media and as such was major beneficiary of exorbitant rates which resulted into loss to the national exchequer to the tune of Rs.75,830,568/-. 18. The petitioner's main defense was that he did not charge exorbitant rates and that he was fully entitled to charge the rates which he did. This was because according to him this was an unregulated industry . In this respect he placed reliance on The Pakistan Broadcasting Association Rules and Regulations Governing Conduct of Advertising Agencies/MBHS. 19. Thus, according to the rules the petitioner through his proprietorship Orient was entitled to keep (a) 15% commission as of right (b) any other form of bulk discount or (c) credit note availed by them. 20. In this respect Orient referred to numerous transmission certificates, bulk discounts credit notes which they had received and were entitled to keep. 21. Modus Operandi: In effect by way of an example of what was the happening was that the advertising agency for example would be given an invoice by the T.V. company for the advert of RS 100 out of which the advertising agency kept 15% as commission, then kept another amount as bulk discount say 15%, then kept another amount by way of credit note say another 15%, so the advertising agency would only pay Rs. 55. However when the adverting agency invoiced the Information Department GOS for the advert run by the T.V company the advertising agency gave a different invoice which would only show Rs. 100 less 15% commission so that the cost of She advert to the GOS was Rs. 85 which allowed the advertising agency in this example to pocket an extra Rs. 30 on top of its allowed commission (with the GOS allegedly having no idea about this practice when for all practical purposes this extra Rs. 30 was most probably split between the advertising agency which had been favoured and the Government officials who are also co-accused in this reference and favored them by violating the Rules). As such the true amount paid to the T.V company by the advertising agency has been dishonestly suppressed by the advertising agency in its invoices to the GOS.
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22. Even if we accept that the advertisin g agency was allowed 15% commission as per Para 7 of the amended Pakistan Broadcasting Association Rules and Regulations Governing Conduct of Advertising Agencies/MBHS only an extra 15% was available making a total of 30% if the bills were paid within a specified period. However as is apparent from the documents on record the petitioner (Orient) was claiming far more than this as indicated by the table in the reference (which is reproduced below) which has not been disputed by Orient which in the various columns shows the amount received by Orient from GOS, amount actually paid to the TV Channel by Orient and the resultant loss to the exchequer . In nearly all cases the discount was well over 30% reaching as high as 70% in some cases. Messrs Orient Communications Pvt. Ltd. 23. The above modus operandi of dual invoices and the above chart in our view comprehensively shows that Orient was deliberately and with S. No.Channel (TV/FM) Amount received from Govt. by the AgencyActual paid or payable by the agency to the channel after deduction of agency commission and special discountsDifference/loss to national exchequer which also includes amount of credit Note/ Special discount obtained by the agency 1Dunya News TV Channel7,382,667 4,773,884 1,501,383 2 Geo TV Network 30,792,184 23,482.085 3,166,202 3 Metro One TV Channel16,551,500 6,060,371 8,704,259 4Samma TV Channel3,647,000 2,306,919 793,031 5ARY News TV Channel9,102,916 7.501,958 682,763 6Awaz TV Channel23,173,800 8,190.113 16,679,734 7Health TV Channel1,790,248 1,253,174 228,257 8Sindh TV Network15,901,999 2,767,818 11,582,671 9Mehran TV Channel16,517,001 10,234,254 6,431,854 10 Dawn News TV Channel17,010,663 11,175,915 3,283,150 11. News One TV Channel5,285,000 2,676,011 1,934,364 12Solo Media Group21,671,500 5,000,000 13,420,775 13 Digi Media 4.306 500 2,500,000 1,431,500 14 FM 100 Fake TC and Invoice 5,990,625 Total 173,132,978 87,922,502 75,830,568 23. The above modus operandi of dual invoices and the above chart in our view comprehensively shows that Orient was deliberately and with malafide intention suppressing invoices from the GOS which enabled it to Illegally benefit greatly and caused a colossal loss to the GOS. This was the modus operandi adopted by all the advertising agencies who are co-accused except that the other agencies conduct was far more illegal as they had no credit notes or bulk billing discount to show precisely why they had deducted what amount.
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Thus, it may be true that the case of the petitioner is on a better footing than the other advertising agency co- accused such as Evernew Concepts, Adarts etc. as the petitioner at least provided some documents in support of his claim. We have already dismissed the post arrest bail petitions in respect of Marts advertising agency which was another illegal beneficiary, on merits which was appealed before the Hon'ble Supreme court and was withdrawn by Adarts with the direction that they may again if so advised approach this court for post arrest bail. 24. With regard to over billing by the petitioner (Orient) and Evernew reference can be made to 5.161 statements of Mohammed Harris Hussain and asso ciated documents (IR P.215 to 223) Ghulam Hussain and associated documents (IR P.225 to 231) Kaleem Ahmed and associated documents (IR P.239 to 245, 251, 253), Mohammed Ali Saeed and associated documents (IR P.255267) Kaneel Iqpat (IR P.269 to 273) and Qazi Ahmed Mateen (IR P.275). 25. Ultimately however there is no getting away from the fact that the material on record shows that the petitioner through his illegal conduct and connivance with the official accused from the Ministry of Interior in this case caused a massive loss to the GOS and there is more than sufficient material on record to connect him to the commission of the of fense for which he has been charged and as such his petition for post arrest bail is dismissed. 26. With regard to the case of Sharjeel Inam Memon who has applied for bail on medical grounds we first need to consider the relevant law on what amounts to bail on medical grounds and then consider his medical reports to see if they meet these legal requirements. The law on bail on medical grounds . 27. The statutory basis for the grant of bail on medical grounds can be found in the first proviso to section 497, Cr.P.C. which provides as under: "497. When bail may be taken in case of non-bailable offence. (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police- station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail." (bold added) 28. After a detailed study of the law on medical bail as enunciated by the superior judiciary in the case of Kifayatullah v. Federation of Pakistan (2017 PCr.LJ 192) this court came to the conclusion that the test for the grant of bail on medical grounds was laid down as long ago as 1995 by the Hon'ble Supreme Court in the case of Mohammed Yousafullah Khan v. State (PLD 1995 SC 58) which in our view still remains good law, even after the later cases of Muhammed Saeed Mehdi v. State (2002 SCMR 282) and Peer Mukaram Ul Haq v. NAB (2006 SCMR P .1225 ), where it was held at P .65 as under: "From the above discussed position it is clear to us that the bail on medical ground can be granted under section 497, Cr.P.C. if the Court reaches the conclusion on the basis of medical report that the ailment with which the accused is suffering is such that it cannot be properly treated while in custody in Jail. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be a ground either to refuse or grant the bail on medical ground. The correct criteria for grant of bail to an accused in a non-bailable case, on medical ground, in our view , would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialized treatment is needed and his continued detention in Jail is likely to af fect his capacity or is hazardous to his life". (bold and italics added) 29. Thus, the test would therefore appear , in non bailable cases such as the instant case, to have the following limbs as set out below all of which in turn the court would need to be satisfied of, based on the medical reports, before the Court before bail on medical grounds may be granted under the first proviso to section 497(1), Cr.P.C. based on the particular facts and circumstances of each case. (a) the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and
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(b) that some specialized treatment is needed and (c) his continued detention in Jail is likely to af fect his capacity or is hazardous to his life. 30. In the final analysis however bail on medical grounds is of a discretionary nature and it is up to the court whilst applying the criteria in Mohammed Yousafullah Khan's case (Supra) based on the medical reports and based on the particular facts and circumstances of each case to determine whether bail on medical grounds…
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