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Petitioner: GULSHER AHMED CHACHAR and others VS Respondent: NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and others
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title:GULSHER AHMED CHACHAR and others vs NATIONAL ACCOUNTABILITY
BUREAU (NAB) through Chairman and others Case No.: C.Ps. Nos, No,D-4659, D-7188, D-6613, D-6830 and D-7294 of 2017 Date of Judgment:2018-03-28 Reported As: 2019 YLR 1016 Result: Order accordingly Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---Through these petitions, petitioners Shukatullah and Mushtaq A. Qaiser seek bail after arrest in National Accountability Bureau (NAB) Reference No,22 of 2017 State v. Imam-udd-ddin Marwat and others which was filed against them by NAB for acts of corruption and corrupt practices under the National Accountability Ordinance 1999 (NAO) on 19-09-2017 whereas petitioners Gulsher Ahmed Chachar , Uzair Abubakar and Amjad Iqbal seek confirmation of their interim pre-arrest bail granted to them by this Court in connection with the same reference. 2. The allegations against the above named petitioners as enumerated in Referenc e No,22 of 2017 State v. Imam- udd-ddin Marwat and others are that on receipt of a complaint from National Fertilizer Marketing Limited (NFML) regarding shortage of Urea in Karachi Godowns, an enquiry was authorized by NAB which was subsequently converted into investigation. 3. That the investigation revealed that Ministry of Industries and Production (MOIP) through National Fertilizer Company (NFC) and National Fertilizer Marketing Limited (NFML), a government owned limited company initiated a Urea Import Project, involving private contractors hired for transportation from Gawadar port/Karachi to bulk storages and upcountry delivery through Tally, labour and Security Service firms. Messrs Inam and Company (Inam and Co) a Carriage Contractor of NFML, committed default (shortage) as transporter during year 201 1-13. 4. That the investigation further revealed that accused Nos,1 to 4 owners/ directors of defaulted company Messrs Inam and Company master minded another plan to steal/misappropriate imported Urea worth millions of rupees by changing their faces, variant nomenclatures, through bogus/ unregistered front/dununy firms in various names and availed a contract of Tally, Labour and Security of Karachi Godown through its dummy Firms Messrs Sindh
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Goods Transport Company in May-June 2013 and Messrs Shameer Tally Labour and Security during Dec. 2013- 2014 through fraudulent means. 5. That the investigation revealed that accused No,7 Uzair Abubakar (Ex.AGM/DGM), accused No,8 Gulsher Ahmed Chachar (Port Office Incharge/ Regional Manager), accused No,9 Amjad Iqbal (Store Incharge), and accused No,10, Mushtaq A. Qaiser , (Dy. Manager) by misusing their authority collusively awarded contract of Tally, Labour and Security services at NFML Godown (Karachi) to bogus/dummy firms of Messrs Inam and Company (namely Messrs Sindh Goods Transport) owned and controlled by the Accused Nos,1, 2, 3 and 4 without proper approval of competent authority/ MD and without submission of genuine documents or fulfilling requirements of tendering/ bidding as per rules/ regulati ons of Public Procurement Regulatory Authority Ordinance, 2002. The accused Nos,7, 8, 9, 10 abrogated and disregarded all SOPs/manuals and mandatory documentation, allowing the accused Nos,1 to 6 to violate the essential requirements and conduct their malicious designs of misappropriation, pilferage, quantity lessening (sweep), dumping and shortage. 6. That further investigation revealed that after disclosure of these shortages in respect of Messrs Sindh Goods, accused Nos,1, 2, 3, 4, 5 and 6 launched another dummy firm of Messrs Inam and Co. namely Messrs Shahmeer Tally, Labour and Security and availed the possession of Rakesh Godown Karachi through an irregular tender in connivance with the accused Nos,7, 8, 9 and 10, through an agreement between NFML and Messrs Shahmeer Tally for 22 days from 09.12.2013 to 31.12.2013. Subsequently , this contract was extended till 08.01.2014 and 10.02.2014 and finally till the finalization of fresh tender process on various pretexts. 7. That investigation revealed that departmental enquiry was initiated which established that accused No,7 (Ex.AGM/DGM) has misused his authority in respect of Messrs Sindh Goods Transport, while another departmental enquiry committee found that Messrs Shahmeer Tally submitted forged and bogus documents to get the tender . 8. That the Departmental Enquiry Comm ittee of NFML ascertained the losses and responsibility of the NFML officers and found that 1947.5 M. Tons of Urea is missing from Rasheed Godown and 700.85 M. Tons from Kohinoor Godown both of which were handed over without written contract but remained under the management and responsibility of Messrs Sindh Goods Transport (dummy of Inam and Company), which failed to hand over the Godowns duly accounted for Urea and caused shortage. The committee found that accused No,7 abused his position as acting GM to force his subordinates at Karachi to give the contract to Messrs Sindh Goods and despite already quoted lower rates, which appears to have been tampered. That the illegal possession of the company continued for months but Port Office Incharge (Accused No,8) failed to take legal action and kept discharging the Urea from Godowns. 9. That the investigation further revealed that Accused No,7 in collaboration with Accused Nos,1, 2, 3 and 4 got initiated the bogus/ pseudonymous application apparently signed by a person "Jumair Shah" along with his CNIC, who denied any such submission or proprietorship during investigation. Accused Nos,7, 8 and 9 deliberately allowed a defaulting carriage contractor to appear as new bogus firm/namely Messrs Sindh Goods Transport Co and also accepted their pseudonymous and false documentations without appearance and confirmation of real owner/representative, at the time of submission of documents and handing over of Urea possession at later stage. Accused Nos,8 and 9 issued an NOC/recommendation for award of a temporary contract with processing of the blank stamp paper . Even bogus author ity letters were accepted to further transfer/ shift the responsibility on someone else instead of beneficial owne rs/ directors. The application was proce ssed at NFML HQ by accused Nos,7 and 10. 10. That the investigation further reveals that Accused Nos,1 to 4 orchestrated a process of fraudulent registration / contracting in the name of their employees. Accused No,1 has registered various other companies and firms for his contracts in different departments including NLC, TCP, NFC and NFML for which he and his family are beneficial owners. He frequently misappropriated government properties through contracting in pseudonymous names, printing fake letter heads, making fake/dubious stamps and placing front men to avail contracts. In case of disclosure or blacklisting of said firms, he used to register other firms through misrepresentation of particulars/fraudulent use of identification papers of his employees, online NTNs or impersonations of other persons ultimately implicating them in an of fence actually committed by him.
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11. As accused No,4 (Shoukatulah) is before us there is at this stage no need to go into the detailed allegations which can be found in the reference against accused Nos,1 to 3 who were in effect, as mentioned above, the beneficiaries of this scam by illegally arranging the grant of contracts to blacklisted dummy companies in connivance with the official accused (who misused their authority and/or failed to exercise their authority) and their front men accused Nos,5 and 6 in order to steal tons of urea which caused a massive loss to the national exchequer and in ef fect are the beneficiaries of this scam. 12. That investigation further reveals that a Court appointed Commission established the shortage of 755,30 M.T (15, 106 Urea Bags) at Rakesh Godown Karachi after which NFML took over the possession on Court directions which caused a massive loss to the Government exchequer and hence the aforesaid reference was filed against the petitioners and the other co-accused by the NAB under the NAO which is now proceeding before the concerned accountability court. 13. Learned counsel for petitioner Gulsher Ahmed Chachar who is on pre arrest bail and who at the time of the commission of the offense was Ex port in charge/regional manager/NFML Godown Karachi submitted that he was completely innocent of any wrong doing; that he was regional manager of six godo wns; that in order to ensure that the urea was swiftly moved from the port to the Godowns after the termination of the Labor , Security and Tally contract to Afzal Enterprises he had recommended a choice of three companies and their bids for tally contract and Labor and security guards respectively to his superior petitioner Uzair Abu Bakar (whose case will be dealt with below) however his recommendations were ignored and he was told to consider awarding the contract for labor /security and tally to Sindh Goods Transport Company (SGTC); that under pressure from his superior petitioner Abu Bakar he approved the same and awarded a verbal contract to SGTG withou t knowing that it was blacklisted and thus for all the above reasons he was entitled to the confirmation of his pre arrest bail. 14. Learned counsel for petitioner Uzair Abu Bakr who is on pre arrest bail and who at the time of the commission of the offense was Ex DGM/AGM (Distribution) NFML HQ Lahore submitted that he had recommended the use of SGTC however as soon as he became aware of the illegalities being committed by it he reported the same to the higher authorities and in effect he was a whistle blower and as such was complet ely innocent of any wrong doing and therefore he was entitled to the confirmation of his pre arrest bail. 15. Learned counsel for petitioner Amjad Iqbal who is on pre arrest bail and who at the time of the commission of the offense was store Incharge NFML submitted that he was completely innocent of any wrong doing; that at the time of the offense he was not posted at the Godown in Karachi and as such could not have been responsible for any offense in the reference; that even when he was posted at the Godown he had written two letters to petitioner Gulsher Ahmed Chachar who was his immediate superior complaining about the theft and shortages of urea which was being caused by SGTC and as such he had done every thing within his power to prevent the commission of the offense; that the security of the Godo wn was the responsibility of SGTC and not him and thus for all the above reasons his pre arrest bail should be confirmed. 16. Learned counsel for petitioner Mushta q A.Qaiser who has applied for post arrest bail and who at the time of the commission of the offense was manager (distribution) NFML HQ Lahore submitted that he was innocent of any wrong doing; that mere was no material on record against him; that he had moved a note dated 27-05-2013. seeking the approval of SGTC as contractors for labor , security and tally purposes to replace Afzal Enterprises whose contract had recently been terminated on the same terms and conditions but although his note was approved by petitioner Abu Bakar it was not approved by the then managing director and as such he played no part in the ultimate award of the contract to SGTC. In this respect he relied on the section 161 statements of Tariq Shafiq Khan and Tanvir Ahmed; that he had put the note up because petitioner Abu Bakar had asked him to; that since he was at HQ in Lahore in a management role he had nothing to do with any illegalities which may have been taking place on the ground, at the godowns and thus for all the above reasons he should be granted post arrest bail. 17. Learned counsel for petitioner Shouk atullah who has applied for post arrest bail and who at the time of the commission of the offense was a Director of Inam and Co.. Shamsheer Tally and Labor and security and SGTC admitted that he was a director of Inam and Co and SGTC but he was completely innocent of any wrong doing; that
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for most of the time he was a humble employee of Inam and Co and that he simply followed the instructions of accused Nos,1, 2 and 3 who have all absconded who were the Directors who had actual control of Inam and Co and SGTC and he was merely a pawn in the affairs of the said companies; that there has been no misappropriation by him; that there was not a shred of evidence against him and that for all the above reasons he was entitled to be granted post arrest bail. 18. 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 and also submitted that the petitions for post arrest bail filed by the respective petitioners should also be dismis sed as there had been no mala fide on the part of NAB and that there was more than sufficient material on record to connect each of the petitioners to the offense for which they had been charged under the reference. In support of his contentions he took the court through various documents on record. 19. W e have heard the parties and have carefully gone through the record with their able assistance. General 20. 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. 21. 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. 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 commissi on of the offense for which he is charged. 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 fiduciar y duty to protect and safeguard government property and to ensure that the tax payers money and property 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 RS10's of millions in this case ) and as such we have adopted the said approach. Mens rea 24. With regard to the question of mens rea this can very often be inferred from the facts and circumstances of the case and based on the material before us prima facie it can be inferred that 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 exercise authority , misuse of authority , deliberately violating the Rules. 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. Findings on mala fides. 25. It is now well settled law that pre arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on the part of the complainant or the investigating agency which in this case is the NAB. In this regard reference may be made to the case of Rana Mohammed Arshad v. Muhammed 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).
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26. In this case none of the petitioners who are on pre arrest bail have alleged any mala fides on the part of the NAB and from the record we have not seen any material on record to show any mala fides on the part of NAB Findings on Merit. 27. Turning to the case of petitioner Gulsher Ahmed Chachar who is on pre arrest bail and who at the time of the commission of the offense was Ex port in charge/regional manager/NFML Gowdown Karachi. As mentioned above he has not claimed any mala fides on the part of NAB. 28. The petitioner has been given a specific role in the reference at Para 21 which reads as under:-- "That the accused No,8 Gulsheer Ahmed Chachar (Regional Manager) having additional charge of Port Office Karachi has recommended the tender of Messrs Sindh Goods despite his earlier submissions and knowing the fact that Messrs Sindh Goods (dummy) has actually worked as Inam and Company (defaulter) owned/ controlled by Haji Imam Din and his collaborator . He as Incharge (Port Office) misused his authority and facilitated the culprits in getting the contract from NFML. He also failed to ensure the particulars and identity of the contractor and processed the documents of Messrs Sindh Goods without any verification. He maliciously and deliberately avoided to lodge an FIR for theft with police. The accused endorsed the undated / unnu mbered application for a fake / dummy company Messrs Sindh Goods signed by Jumair Shah without verification and submitted the relevant documents twice to accused No,7 Uzair Abu Bakar . He failed to ensure the safe custody of the Urea and allowed it to be handed over to the accused Haji Imam Din and his representatives without documentation and confirmation of agreement and work orders. He while part of the nexus of Accused persons benefited through appointments of his relatives, one known as his nephew Ahsan Chachar , who later helped him in exerting undue influence over other employees". 29. The petitioner knew that rules had to be followed in order to appoint a new contractor . This is shown by the fact that although the petitioner did not follow the required rules and had no legal authority to evaluate companies for appointment he attempted to do so. The record reveals that by letter dated 13.05.2013 to his superior petitioner Abu Bakar he sent recommendations of 3 companies for both Tally and labour and security for consideration. However on 14.05.2013 (one day later) he received a letter from his superior petitioner Abu Bakar "to consider" appointing SGTC the contract of Labour/security and Tally as a stop gap measure for the forthcoming shipment at higher rates than were recommende d by himself one day earlier . There was no "direction" to appoint SGTC but rather only to "consider" it for appointment on the attached request sent by SGTC for the contract. Instead of writing back to petitioner Abu Bakar at a minimum to find out what had happened to his own recommendations or seeking confirmation that the rules had been followed and the high ups had appro ved the award of the contract to SGTC two days later he approved the appointment of SGTC on 16-05-2013. This was a clear misuse of authority and failure to exercise authority on his part which lead to the illegal favoring of SGTC which was a black listed company which caused a loss to the exchequer . Apart from approving the contract with SGTC the petitioner also failed to enter into any formal written agreement with SGTC and allowed it to operate on a verbal basis. Thereafter he seems to have quietly gone along with the arrangement without even carrying out proper checks on the Godowns where the urea was being stolen from. He claims to have been pressurized to appoint SGTC by petitioner Abu Bakar but even if this was so this was no excuse for him misusing/failing to exercise his authority . 30. An internal inquiry dated 30.06.2014 concerning these urea shortages ordered by NFML found as under in respect of the petitioner's involvement in the scam:-- ...........The fact that Messrs Sindh Goods continued operation for months without written contract and without proper check and balance is beyond negligence on part of NFML officials and falls into the domain of criminality . The Port in-charge Mr. Gulsher Chachar claimed to have repeate dly informed the Head Office Lahore about it but failed to take any legal action having himself visited the go-down on 20th June, 2013 and without actual stock taking kept discharging the urea from the go-downs, at least he should have lodged a police complaint the momen t he would have known of the instance of missing urea so that the representative of Messrs Sindh Goods present at that time could have been dealt under relevant law and urea should have been brought into countable position . During the inquiry proceedings the inquiry committee has learnt other gross violations against company policy like that the keys of the store locks remained with the
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contractor and that after stated closing operations on 25th July, 2013 old locks were used and no proper daily sealing de-sealing of store was done. That role of port in charge (the petitioner) and store in-charge(s) (petitioner Amjad Iqbal whose case is dealt with below) posted since appointment of Messrs Sindh Goods to dispatch till 5th July at Rash eed go-down and till 25th July at Kohinoor go-down is therefore not up to mark (the dates when the urea theft/embezzlement has been pointed out by the store in charge), they appear to have failed to discharge their duties diligently for safe keeping the company stock as per company rules. Departmental action after regular inquiry may also be initiated against them under rules. The role of NFML staff/ Management involved in any possible collusion, abetting, and Facilitation of the misappropriation / embezzlement of NFML urea stocks may also be determined through proper inquiry/ investigation as per company policy/ Government rules." 31. It also appears that in return for illegally appointing SGTC the petitioner received illegal favors/benefits. For example, through the appointment of his relatives, one known as his nephew Ahsan Chachar , who later allegedly helped him in exerting undue influence over other employees. 32. He is also fully implicated along with the other petitioners by the section 161 Statement of Mr. Jai Parkash which sets out the complete modus operandi as under: "I Jai Parkash son of Lal Chand CNIC No, 42201-3102848- 7 Office Address 614 Hussain Trade Centre, Altaf Husain Road New Challi Karachi, Mobile No,0300- 21991 14 office No,021-32275692-93 states that, I have a firm namely Anmol enterprises which is worki ng as a brokerage firm. I have been doing Urea business with Inam and Company for about two (02) to three (3) years. We have bought Urea from Haji Inam Din who in my view is the owner of Imam and Company . This Urea has been sold after deducting the brokerage fees in various areas on the basis of our contacts / market relations. The payments against these transactions were given to the Manager Shoukat Khan with the permission of Imam Din. The Urea dealings were sometime done by Imam Din and at times by Shoukat Khan . They would sometimes get the payments through online transactions and at times through cheques. After finalization of a deal for the sale of Urea sometimes they would deliver us the consignment directly from the (Ship) at Port and sometimes they would get us the delivery of Urea (Loadings) from NFML Godowns. In this process they had their own transporters were directed by them to give Urea bags as per the deal to dealers like Jai Parkash. So the bags would be delivered at the site where the purchaser wanted. Mostly our deals with Haji Imam Din were conducted through telephone and personal meetings but no documentary process were carried out as far as I recall. Upon their instructions transporter would used to call us that where the (PO) of the consignment is to be delivered and after the delivery they would collect the transportation charges from us. Sometime we would send our own vehicles for the loading (delivery). Once, I visited NFML office for getting my personal dealership, meaning NFML (membership) in my name there were queues of dealers. After waiting for about two hours, on my turn I met with Mr. Gulsher Chachar . He asked for commission for the grant of dealership in order to avoid the delay . I was told that if I followed the process then my dealership would be the delayed and the work accordingly Chachar sab used to allow the dealers more Urea…
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