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Petitioner: SHOAIB WARSI and another VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Sadiq Hussain Bhatti Title: SHOAIB WARSI and another vs FEDERATION OF PAKISTAN and others Case No.: Constitutional Petitions Nos. D-1199 and D-214 of 2016 Date of Judgment:2016-07-01 Reported As: PLD 2017 Sindh 243 Result: Bail allowed
Judgment ORDER ' AQEEL AHMED ABBASI, J.--Since the facts of both the petitions and the allegations as contained in NAB Reference No,19/2016 against both the petitioners are similar, therefore, by consent of learned counsel for the petitioners and the Special Prosecutor, NAB duly assisted by the SIO Abdul Fatah, NAB, the above petitions are being disposed of by this common order in the following terms: 2. The brief facts relevant for the purpose of disposal of above petitions as stated in Const. Petition No,D-1199/2016 in respect of petitioner, namely, Shoaib Warsi are that on 26.08.2015 at about 7:30 p.m., petitioner namely Shoaib Warsi, Deputy Managing Director of SSGC was picked up by the officials of Pakistan Rangers Sindh outside the head office of SSGC from his official Prado Jeep bearing registration No,BD-1370 (golden colour) along with Driver namely, Khalid and Gunman, namely, Muhammad Khan, whereas such arrest was reportedly witnessed by large number of persons and such news was also highlighted in the electronic and print media. The arrest of the petitioner was shown by the Pakistan Rangers Sindh under Section 11EEEE(1) of the Anti-Terrorism Act, 1997, and the petitioner remained under detention by the Pakistan Rangers Sindh for a period of about three months (Ninety days), where after, his custody was given to NAB officials, however, without any Court's order. On 27.11.2015, the officials of respondent No,1 tried to obtain the remand of the petitioner from the concerned Judicial Magistrate, which was declined on the ground that the said Magistrate had no jurisdiction to grant remand as the matter pertains to NAB. On 28.11.2015, SIO Abdul Fatah, Deputy Director, NAB moved an application before the NAB Court, Karachi, by raising frivolous allegations and grounds for obtaining 15 days physical remand of the petitioner, which was granted until 11.12.2015, whereas, further remand was obtained by the NAB authorities, which was granted on 11.12.2015, 07.12.2015, 30.12.2015, 05.01.2016, 10.01.2016 and 20.01.2016 respectively, and
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thereafter the petitioner was remanded to judicial custody on 21.09.2016. The petitioner being aggrieved by his illegal arrest and detention filed a Constitutional Petition No,D-7571/2015 seeking his release on bail, however, the same was dismissed vide order dated 18.02.2016 for the reasons that since, the S.I.O. NAB is yet to record the statement of witnesses and to collect the material against the petitioner, therefore, the concession of bail to the petitioner could not be extended at the initial stage of inquiry and investigation. However, since a Reference bearing No,19/2016 has now been filed before the Accountability Court, Sindh at Karachi, after inquiry and investigation, the petitioner has filed instant petition for seeking his release on bail on various grounds on merits, besides the grounds that the entire proceedings against the petitioner, starting from his illegal arrest by the Pakistan Rangers, Sindh on 26.08.2015 under purported exercise of Section 1 lEEEE(1) of the ATA, 1997, his illegal detention for ninety days without any material or evidence, and thereafter, handing over the custody of petitioner by the Pakistan Rangers, Sindh to NAB authorities on 26.11.2015 without Court's order is patently illegal without lawful authority and tainted with malice. 3. Similarly, the brief facts as stated in Const. Petition No,D-214/2016 in respect of petitioner, namely, Zuhair Siddiqui, remained Managing Director, SSGCL with the approval of the competent authority w,e,f, 08.11.2012 to 12.03.2013 and stood retired on attaining the age of superannuation on 12.03.2013 from SSGCL, and thereafter his services were continued by the orders of the competent authority from 12.03.2013 to 16.07.2014 on contractual basis, until he tendered his resignation. On 27.08.2015, at late hours of night at about 3.00 a.m, the house of the petitioner was raided by the Pakistan Rangers, Sindh, who was arrested, whereas, on the next date in the morning i,e, 28.08.2015, his physical remand was obtained for Ninety days by the Pakistan Rangers, Sindh, under Section 1 lEEEE(1) of ATA, 1997. During his arrest by the Pakistan Rangers Sindh, the petitioner was reportedly interrogated by the NAB authorities as well on various occasions. On expiry of 90 days remand on 26.11.2015, the custody of the petitioner, namely, Zohair Siddiqui, was handed over by the Pakistan Rangers Sindh to National Accountability Bureau, Karachi, whereas, on 28.11.2015 the SIO NAB obtained remand of the petitioner for 15 days from the Accountability Court at Karachi, which was granted until 11.12.2015. Petitioner's further remand was obtained from the Accountability Court at Karachi on 11.12.2015 to 17.12.2015, 17.12.2015 to 30.12.2015, 30.12.2015 to 05.01.2016 and 05.01.2016 to 11.01.2016, however, during above extensive remand period, according to petitioner, the NAB authorities could not collect any tangible material or evidence against the petitioner, who was being detained, initially by Pakistan Rangers, Sindh and thereafter by NAB authorities, without any legal basis, just to cause harassm ent and humiliation to the petitioner. 4. However, since NAB authorities have now filed Reference No,19/2016 before the Accountability Court at Karachi, therefore, both the petitioners seek their release on bail during pendency of trial through instant petitions on various grounds whereas, such grounds and 'the arguments of both the learned counsel for petitioners i,e, M/s Khawaja Shamsul Islam (C.P. No, D-1199/2016) and Farooq H. Naek (C.P. No,D-214/2016) Advocates can be summarized in the following terms. 5. Learned counsel for the petitioners argued that the illegal arrest and detention of the petitioners on 26-8-2015 and 28-08-2015 respectively, by the Pakistan Rangers, Sindh in the absence of any criminal case or any incriminating material under the purported exercise of authority under Section 1 1 EEEE(1) of the ATA, 1997, and, thereafter, instead of releasing them after expiry of ninety days, handing over their custody to the NAB authorities, without any order of the Accountability Court or the competent authority, besides being patently illegal and contrary to provisions of NAB Ordinance, 1999, was based on mala fide. According to learned counsel, the arrest of the petitioners by the NAB authorities in Reference No,19/2016, in the absence of any authorization by the competent authority i,e, Chairman NAB, for initiating any inquiry or investigation against the petitioners in the aforesaid reference was equally illegal and without any lawful authority. Learned counsel for the petitioners further contended that the repeated remands obtained from the NAB
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Court by the NAB authorities were also without lawful authority and tainted with malice, as according to learned counsel no reasonable grounds were disclosed nor any incriminating material could be produced by the NAB authorities while seeking repeated remands of the petitioners. It has been further submitted that at the time of arrest of petitioners by the NAB authorities, there was no legally instituted inquiry or investigation against the petitioners by the competent authority, nor there was any incriminating material which could be collected either by the Pakistan Rangers (Sindh) or the NAB authorities during illegal detention of the petitioners since their arrest, and in spite of such facts, the petitioners have remained in custody, initially by Pakistan Rangers (Sindh) and now by NAB authorities for a period of about one year, whereas, neither charge has been framed nor the trial has commenced so far. Learned counsel for the petitioners further contended that the petitioners were never served with any 41 up notice in terms of Section 19 of NAB Ordinance, 1999 by the NAB authorities, nor have ever been confronted with the allegations as contained in the above reference before their arrest, whereas, no valid reasons, whatsoever, have been disclosed by the competent authority while issuing warrant of arrest in respect of the petitioners. It has been further contended by the learned counsel that on 20.11 2015 there was no inquiry and investigation duly authorized by the competent authority in respect of allegations as contained in Reference ,No,19/2016, whereas, the grounds as stated for the arrest of the petitioners while issuing warrant of arrest were signed by the I.O. and not by the Chairman, NAB as required by law. Per learned counsel, in the authorization letters dated 18.09.2015 and 22.09.2015, there is no reference to allegations against the petitioners, namely, Shoaib Warsi and Zuhair Siddiqui, as contained in Reference No,19/2016, whereas, through letter dated 18.09.2015, the Director General, NAB, Karachi, was delegated powers by the Chairman, NAB to authorize inquiry against Dr. Asim and others for misuse of authority and corruption in SSGCL through illegal benefits extended to KESC, whereas, through letter dated 22.09.2015, the I.O. Abdul Fateh, Deputy Director, NAB was authorized by the Director General, NAB, to conduct inquiry against Dr. Asim Hussain and others for alleged corruption and extending undue benefits to K-Electric under Inquiry No,242118-Karachi only. Per learned counsel, the investigation report was prepared on 01.03.2016, however, the witnesses were examined under Section 161, Cr.P.C. by the Investigating Officer on 28.11.2015, even prior to authorization of such inquiry and investigation by the competent authority. It has been contended by the learned counsel for the petitioners that the petitioners, who remained as Deputy Managing Director and Managing Director respectively of SSGCL for a very short span of period, have been roped in a frivolous reference on the allegations of having facilitated the Petroleum Minster Dr. Asim on the charges of corruption and misuse of authority and to cause loss to public exchequer, however, in the absence of any incriminating material to support such allegations, merely on the basis, of some Record of Discussion (ROD). Per learned counsel, such ROD was subsequently, placed and discussed in the Board's Meeting, which was attended by majority of Board's Members, including Minister of Petroleum and officials of OGRA and SSGCL, whereas, both the petitioners were merely one of the members of the Board in such meeting, and had no decisive Tole to either present such proposal or to get the same approved by the majority members of the Board of Directors. Per learned counsel, allegations as referred in the Reference against petitioners, besides being false and frivolous, are otherwise based on surmises and conjectures, whereas, no specific role has been assigned to the petitioners relating to allegations of misuse of authority, causing loss to the public exchequer, or to extend any financial benefit to JJVL. 6. It has been further contended by the learned counsel for the petitioners that the prosecution could not collect any material regarding illegal gain, if any, which could be attributed to the petitioners, whereas, the similar allegations as contained in the aforesaid reference relating to violation of PEPRA Rules while awarding contract to JJVL or extending undue benefits to JJVL, and to have caused purported loss to the public exchequer, was already, subject matter of the
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Constitution Petition No,5 of 2011 before the Hon'ble Supreme Court, which has been disposed of by the Hon'ble Supreme Court with the directions to the respondents to constitute a Committee comprising of Mr. M. H. Asif (former member OGRA) and Mr. Shabbar Raza Zaidi, partner of Messrs A.F Ferguson & Co. Chartered Accountants, to scrutinize the accounts by affording opportunity of being heard to both SSGCL and JJVL, and to submit report, which according to learned counsel for the petitioners, has been submitted from time to time and the matter is still under scrutiny before the Hon'ble Supreme Court. Learned counsel further argued that the NAB authorities have roped the petitioners in frivolous proceedings under the NAB Ordinance, 1999, on the basis of same set of allegations, which amounts to vexing the petitioners twice for the same alleged offence, and also reflects upon their mala fide. While concluding their arguments, it has been argued by the learned counsel that NAB authorities, in spite of lapse for more than a year since arrest of petitioners, could not collect any material nor could bring anything on record which could possibly establish the allegations of corruption, misuse of authority, loss of public exchequer, or financial benefit or gain to M/s. JJVL or to the petitioners out of alleged acts or omissions as referred in Reference No,19/2016 filed by the NAB against Dr.Asim and others, including petitioners namely, Dr.Shoaib Warsi and Zuhair Siddiqui, before the Accountability Court. It has been prayed that arrest of the petitioners under the aforesaid circumstances amounts to illegal detention, whereas, there is inordinate delay on the part of NAB Authorities in the trial, as even the charge has not yet been framed and there is no likelihood that in near future the trial may proceed or could be concluded. Per learned counsel, matter requires further inquiry, even to make out a cognizable offence against petitioners, therefore, petitioners may be released on bail as almost all the other co-accused are on bail in above reference. In support of their contention, learned counsel for petitioners have placed reliance on the following case laws: (1) Wakeeluddin and others v. The State and others (2007 PCr.LJ 1515) (2) Khawaja Muhammad Asif v. Federation of Pakistan and others (PLD 2014 SC 206) (3) Syed Mansoor Ali and others v. Chairman, NAB and others (PLD 2016 Sindh 41 (4) Anwarul Haq Qureshi v. NAB and another (2008 SCMR 1135) (5) Khan Asfandyar Wali and others v. Federation of Pakistan and others (PLD 2001 SC 607) (6) Raja Muhammad Zarat Khan and another v. Federation of Pakistan and 2 others (PLD 2007 Karachi 597) 7. Conversely, learned Special Prosecutor, NAB duly assisted by SIO Abdul Fatah, Deputy Director, NAB, Karachi, opposed grant of bail to the petitioners on the grounds that petitioner has been nominated with specific role in the reference filed by the NAB authorities before the Accountability Court on the allegations of corruption, misuse of authority and extending illegal benefits and gain to M/s. JJVL by causing huge losses to the public exchequer. It has been further contended by the learned Special Prosecutor that the arrest of the petitioners was made in accordance with law, whereas, repeated remand of the accused persons was obtained on reasonable grounds, i,e, to collect material and evidence against the petitioners. Learned Special Prosecutor further submits that inquiry and investigation has been conducted by the SIO, NAB, after due authorization by the Director General, NAB/Chairman, NAB in accordance with law and there has been no violation of any provision of NAO, 1999, as alleged by the learned counsel for the petitioners. According to learned Special Prosecutor, NAB, the petitioners have not only violated the provisions of PPRA Rules, 2004, while awarding contract to M/s. JJVL but have also extended illegal concession and benefits to M/s. JJVL, which has caused loss of huge public exchequer, to their personal advantage and gain as well as to the advantage and gain to M/s. JJVL. Learned Special Prosecutor submits that there is sufficient material to connect the petitioners with the alleged crime, whereas, the Hon'ble Supreme Court has also examined the violation of PPRA Rules, 2004 and also the illegalities committed by the petitioners along with other co-accused persons, while deciding Petition No,05 of
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2011, wherein, Committee of two persons, comprising of Mr. M.H. Asif and Mr. Shabbar Raza Zaidi has been constituted to scrutinize the accounts and the allegations and to submit report. It has been prayed that petitioners are not entitled to be released on bail in view of allegations as contained in the aforesaid reference and the material gathered by the SIO, NAB against the petitioners regarding their misuse of authority and corruption. 8. We have heard the learned counsel for petitioners, Spl. Prosecutor NAB and perused the record with their assistance. It will be relevant to examine the role of accused, namely, Zuhair Siddiqui, which has been detailed in para 18 at page 26, whereas, the role of accused, namely, Shoaib Warsi, has been detailed in para 18 at page 27 in the following terms:- "Zuhair Ahmed Siddiqui, Ex MD/DMD SSGCL: a. The accused being DMD willfully failed to exercise his authority to prevent illegal award of KPD gas field to JJVL by OGDCL. b. Accused after assuming charge as MD SSGCL illegally approved and allowed co-accused Shoaib Warsi, the then SGM (Transmission) for diversion/supply of KPD gas to JJVL without any tender. In this manner more than 100 MMCD gas of KPD field was illegally handed over to JJVL. c. Accused being MD SSGCL, after announcement of Supreme Court Judgment dated 4th Dec 2013, willfully and with mala fide intention did not implement the said judgment in letter and spirit, rather continued to supply at more favourable terms and conditions. d. Accused being MD SSGCL, illegally and with male fide intention facilitated/compensated JJVL, illegally by signing three MoUs on 26th May 2014, regarding KPD, Sinjoro, Naimat Basal gas fields to JJVL although, tendering of said gas fields had been initiated on 25th May 2014. Through the said MoUs un - evaluated/exorbitant process charges of $ 237 per metric ton were illegally given to JJVL resulting into illegal payment of billions of rupees. e. Accused being MD SSGCL, illegally and with mala fide intention allowed JJVL to retain extracted LPG and NGL worth billions of rupees. f. Accused after leaving the SSGCL on 17th July 2014, joined JJVL subsidiary company i,e, M/s Pakistan Gasport Ltd (PGPL) as Chief Executive Officer which shows his active connivance with accused beneficiary resulting into unlawful favour in the shape of prized appointment. Shoaib Warsi, Ex SGM (Transmission) and Ex-MD SSGCL a. The accused during 2013 was given charge as SGM (Transmission) SSGCL. He being SGM (T) illegally and with mala fide intention facilitated the supply of more than 100 MMCD KPD gas to JJVL. It has also been established that said supply was made without any tender process and even without the approval of BoD. b. Accused, after assuming the charge of MD SSGCL, illegally signed Record of Discussion (RoD) / agreement dated 24 Oct. 2014 through which he unauthorizedly allowed JJVL to make payment due to SSGCL at its own accord. Thus he willfully failed to protect the interest of public exchequer thereby giving undue benefits to JJVL in respect to the timely recovery of due amount / cost of retained LPG and NGL. c. The accused being MD SSGCL illegally cancelled the tendering process of KPD, Sinjoro and Naimat Basal, and willfully allowed JJVL to continue extracting LPG and NGL from Badin, KPD, Bobi, Sinjoro, and Naimat Basal gas fields without any tender. d. The accused being MD SSGCL illegally supplied gas without cost to JJVL for their compressor fuel, resultantly loss worth millions of rupees has been caused to national exchequer. e. The accused in his capacity as MD SSGCL, vide "Note for Director" dated 4th November 2014, by concealing the actual facts, illegally recommended retention of more than 50% of extracted LPG by JJVL. Moreover, the record reveals that due to his act since November 2014 more than 60% of LPG has been illegally retained by JJVL being the share of SLL which is subsidiary of SSGCL. f. The accused being MD SSGCL, by suppressing the true facts, submitted a "Note for Director" dated 16th September 2014, wherein he recommended signing of MoU for Badin field, which is
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against the spirit of the honorable Supreme Court's judgment dated 4th December 2013 and also against the interest of SSGCL. g. The accused being MD SSGCL, in active connivance with other accused officials of SSGCL and JJVL, illegally allowed retention of 100% extracted NGL worth billions of rupees to JJVL without any provision even in MoU which resulted into loss of billions of rupees to the public exchequer. 9. It will be equally relevant to reproduce hereunder the correspondence between the officials of NAB relating to delegation of authority and authorization of inquiry and investigation, produced by the SIO, NAB, i,e, (i) the letter dated 18.09.2015 issued by Chairman, NAB to the Director General, NAB, Karachi, delegating powers to authorize an inquiry against Dr. Asim Hussain and others, (ii) the letter dated 22.09.2015 issued by Director General, NAB, Karachi, to the Deputy Director/SIO, NAB Karachi, namely, Abdul Fatah, authorizing inquiry against Dr. Asim Hussain and others (Case No,242118-KHI), (iii) the letter dated 19.02.2016 issued by Chairman, NAB to Director General, NAB, Karachi, authorizing investigation against Dr. Asim Hussain and others, and (iv) the letter dated 19.02.2016 issued by Director General, NAB, Karachi, to Deputy Director/SIO Abdul Fatah, authorizing investigation against Dr. Asim Hussain and others: "(i) RESTRICTED ' GOVERNMENT OF PAKISTAN ' NATIONAL ACCOUNTABILITY BUREAU ' G-5/2,Ata Turk Avenue ' Islamabad ' To, ' The Director General, ' National Accountability Bureau. Karachi. ' Subject: DELEGATION OF POWERS TO AUTHORIZE AN INQU IRY AGAINST DR.ASIM HUSSAIN AND OTHERS FOR MISUSE OF AUTHORITY AND CORRUPTION IN SSGC THROUGH ILLEGAL BENEFITS EXTENDED TO KESC . ' Dr. Asim Hussain and others are prima facie involved in the, commission of offence(s) under the provisions of National Accountability Ordinance (NAO) 1999. through misuse of authority and corruption in SSGC through illegal benefits extended to KESC and it is necessary and appropriate to initiate proceedings against them. 2. In exercise of powers vested in me under Section 34A of National Accountability Ordinance (NAO) 1999, is authorized to refer the matter for inquiry within the meanings of section 18(c) NAO 1999. Sd- (Qamar Zaman Ch.) Chairman National Accountability Bureau No,3-2/(1)(67)/K/MW-II/NAB HQ/2015 dated 18th September, 2015" (ii) CONFIDENTIAL ' GOVERNMENT OF PAKISTAN ' NATIONAL ACCOUNTABILITY BUREAU (KARACHI) ' PRCS BUILDING 197/5, DR.DAUDPOTA ROAD ' KARACHI CANTONMENT SAY NO TO CORRUPTION ' To, ' Mr.Abdul Fatah Ghambir Deputy Director/SIO NAB, Karachi. ' Subject: Authorization of Inquiry Against Dr.Asim Hussain and others for Misuse of Authority and Corruption in SSGC Through Illegal Benefits Extended to KESC/K-Electric Case No,242118- Khi. ' Ref: NAB HQ Islamabad letter No,3-2(1)(67)K/MW-II/NAB HQ/2015 Dated 18-09-2015 ' Dr. Asim Hussain and others are prima facie involved in commission of scheduled offence(s) of corruption and corrupt practices punishable under National Accountability Ordinance, 1999.
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2. You are directed to hold formal inquiry and submit your final report together with the evidence and other material collected by you for appraisal of the undersigned. Sd/- (Lt Col (R) Siraj ul Naeem) Director General ' NAB Karachi No,242118-Khi/FC/W/1/CO-B/NAB(K)/2015/ 5727 dated 22 September, 2015. (iii) GOVERNMENT OF PAKISTAN NATIONAL ACCOUNTABILITY BUREAU G-5/2,Ata Turk Avenue Islamabad ' To, ' The Director General, ' National Accountability Bureau, Karachi. ' Subject: Authorization of Investigation U/s 18(c) NAO, 1999 against Dr.Asim Hussain, Ex-Minister Petroleum and Natural Resources, Officials of OGDCL,SSGCL and others ' Dr. Asim Hussain, Ex-Minister Petroleum and Natural Resources, Officials of OGDCL, SSGCL and others are prima facie involved in commission of offence(s) of corruption and corrupt practices by Misuse of Authority in illegal award of contract for extraction of LPG and NGL to Jamshoro Joint Venture Ltd etc, which is cognizable under section 9(a), punishable under section 10 of National Accountability Ordinance, 1999 and schedule thereto. 2. You are directed to depute Investigation Officer/Team for Investigation into the matter and submit final Investigation Report together with the evidence and other material collected for appraisal and necessary legal action under the provisions of NAO, 1999. Sd- (Qamar Zaman Ch.) Chairman NAB No,7-2/(13)/K/IW-III/NAB-HQ/2016 dated 19th February,2016 (iv) CONFIDENTIAL ' GOVERNMENT OF PAKISTAN ' NATIONAL ACCOUNTABILITY BUREAU (KARACHI) ' PRCS BUILDING 197/5, DR.DAUDPOTA ROAD ' KARACHI CANTONMENT SAY NO TO CORRUPTION ' To, ' Mr.…
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