Gulzar Ali and Ors (Petitioner) VS Fed. of Pakistan and Ors (Respondent)

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IN THE HIGH COURT OF SINDH, I{ARACHI

Before Mr, Justice Ahmed Ali M. Shaikh, C.J.

Mr, Justice Mohammad Karim Khan Agha,J Petitlon No, q nd name of oetl tloner alono uith counseL 1. C.P. No.D-132 of 2018 Sharjeel Inam Memon V Chairman NAB & another.

Sharjeel Inam Memon S/o Inam-ul-Haq (petitioner No.1), through M/s. Sardar M. Latif Khoso, Shahab Sarki and Zulfiqar Ali Langah Advocates

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2.C.P. No, D-7667 of 2Ol7 Zulfiqat AIi Shallwani V The NAB through its Chairman.

Zulfiqar AIi Shallwani S/o Pir Muhammad Shatlwani (petitioner No.2), Through Mr. Aamir Raza Naqvi &, Naz Ahmed, Advocates.

3.C.P. No. D-7328 of 2Ol7 Sarang Latif V Federation of Pakistan &"others.

Sarang Latif S/o Ameer Bux Chandio (petitioner No.3) Through M/s. Amanullah Sheikh & Manzoor Hussain, Advocates.

4.C.P. No. D-8001 of 2Ol7 Gulzar AIi & another V The Federation of Pakistan & others.

1.Gulzar AILS/o Ch. Muhammad Ali, (petitioner No.4) 2. Salman Mansoor S/o Mian Ghalib Mansoor. (petitioner No.5) Through M/s. Barrister Khawaja Naveed Ahmed & kfan Bashir Bhutta , Advocates.

5.C.P. No. D-8855 of 2077 Umar Shazad V Federation Pakistan through Secretary Ministry of Interior & others. Umar Shazad S/o Nadir Khan (petitioner No.6) Through M/S Amanullah Sheikh and Manzoor Hussain Khoso, Advocates.

Counsel for the Resoo ndents.

Mr. Mohammed Altaf, Special prosecutor, NAEI.

Dates of Hearing: 13-02-2018 and 23-02-ZOIB Date of Order: 02-03-2018

ORDER

Moham med Karlm Khdn Ao ha, J. Through these petitions, petitioners l, 2, 3, 4, S & 6 (Sharjeel Inam Memon, Zulfrqar ,. ,) \','El - ri $r.--!r. iil;,{,'::r-, i. .::( ;1;1iij

Ali Shaltwani, Sarang Latif, Gulzar Ali, Salman Mansoor and Umer Shazad) seek bail after arrest in National Accountability Bureau (NAB) Reference No.SO of 2016 State v Sharjeel Inam Memon and others which was filed against them and others by NAB on 28-09-2016 for acts of corruption and

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corrupt practices, under the National Accountabiliqz Ordinance 1999 (NAO). Their ad interim pre arrest bail granted to them by various orders of this court, along with other co-accused, were recalled by this Court vide consolidated order dated 25-10-2OL7, hence their petitions for post arrest bail. The detailed facts of the case are more particularly set out in the reference and the consolidated pre arrest bail order dated 25-10-2OL7 which should be read as part and parcel of this order. Through this consolidated order we now propose to dispose of tJle post arrest bail petitions filed by the petitioners.

2.It should however be mentioned that petitioner No.l Sharjeel Inam Memon despite being arrested and taken into custody when his pre arrest bail was recalled by order dated 25-10-2015 by passed this court and moved the Hon'ble Supreme Court directly for post arrest bail which vide order dated 02-1-2018 was dismissed with the observation that he may move the relevant court if so advised. Accordingly the petitioner No.l moved this court for post arrest bail on both merits and medical grounds.

1 3. The brief facts of the case as alleged in Reference No.SO/16 State v SharJeel Inam Memon and othere which /h

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petitioners and was filed by NAB on 28-09-2016 against the of other co-accused concerned a financial scam by officials of the Information and Archives Department Govemment whereby the Sindh(GOS) atd various advertising agencies advertising agencies were appointed illegally and in violation to

of the relevant rules through a misuse of authority/failure exercise authority by the government officials who malafide'

deliberately and in connivance with each other awarded which contracts to advertising agencies at exorbitant rates unduly benefited the advertising agencies who are beneficiaries in this case who acted in connivance with the

government officials which lead to a colossal loss of the approximately RS 5 Btllion to the state exchequer hence aforesaid reference was Iiled against the petitioners by

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under the NAO on the grounds of cormption and corrupt practices.

4.These batl petltions concern two categorles of petitioners. Firstly there are the Government oIllclals who allegedly misused/failed to exercise their authority (Sharjeel Inam Memon (petitioner No'1), Zullikar Ali Shallwani (petitioner No.2), Sarang Latif Chandio (petitioner No'3) and secondly there are the advertlsing agencies and their representatives who were the beneltciaries of the deliberate and malafide connivance of the Government offrcials who misused/failed to exercise their authority ; representatives of Adart being Gulzar Ali (petitioner No'4) and Salman Mansoor (petitioner No.S); proprietor of Daily Milan Umar Shehzad (petitioner No.6). yu

-ls3 We will flrstly deal with the case of the Government ofliclals.

5.Learned counsel for the petitioner No.l Sarjeel Inam Memon contended that petioner No.l was entifled to post arrest bail on two separate grounds (a) merits arrd (b) medica-l

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grounds.

6.With regard to merits he contended that the complaint filed by Ms Zeenat Jehan on 06-06-2013 was not maintainable under the NAO and in any event it had nothing to do with petitioner No. 1 who had only taken over as Minister of the Information Department about a week before the complaint was made and even then her S.161 statement was recorded 3 years later; that it was a case of pick and choose as the media houses who had put on air the adverts had not been made accused; that the whole appointment process was transparent and had nothing to do with the Minister who is only concerned with policy decisions; that there was no uniform rate provided by advertisers and that the Information Department had done its best to ensure that it got the most competitive rates. In t-his respect he placed particular reliance on a Note moved by tJle Federal Government Ministry of Information and Broadcasting dated 24-lI-2O17; that the case was based on documentary evidence; that the petitioner was no longer required for investigation; that he would not abscond as he had voluntarily returned to Pakistan to face the charges against him and for all the above reasons he was entitled to post l4-

-l 5 q placed arrest bail. In support of his contentions on merits he reliance on the following autJrorities; Maqbool Ahmed Lehrl andanotherv.NABandanothet(2016SCMR154)'Saeed Ahmed v. The State (1996 SCMR ll32l, Muhammad Boota v. The State (2013 P Cr.L J 318), Iftlkhar-ul-Hassan v' The l.

State (20 13 P Cr. L J 1486), Manzoor and 4 others v' The State (PLD 7972 SC 81), Amir v' The State (PLD 1972 SC 2771 and, Muhammad Afzal v, The State (2005 P Cr' L J

7.With regard to bail on medical grounds he relied on numerous medical docrrments and medical reports from duly constituted medical boards which he submitted met the legal requirement of bait on medical grounds and as such in addition he was entitled to bail on medical grounds' In this respect he placed reliance on the cases of Peer Mukaram ul Haq vs. NAB through Chalrman and others (2006 SCMR 12251, Mian Manzoor Ahmad Watto vs' The State (2000 SCMR 107), Feroze Khau vs. The State (2012 MLD 1152)' Bohalr Qazi and others vs. The State (2012 P Cr' LJ L228l,' Zakhlm Khan Masood vs. The State (1998 SCMR 1065)' Maqsood vs. Ali Muhammad and anothet (197 L SCMR 657)' Maltk Muhammad Yousufullah Khan vs' The State and another (PLD 1995 SC 58), Muhammad Rlaz vs' The State (2006 P Cr. LJ 1459), Altaf Hussain vs' The State and another(2011YLR2228|MuhannmadAliAtharvs.Dlrector General NAB PunJab, Thokar Nlaz Balg Lahore and 2 others (20 13 P Cr' IJ 58) and the supreme court decision in t"

u- Dr Asim Hussain V NAB in CP 2167/17 dated 29-08-2017 (unreported).

8.Learned counsel for the petitioner No'2 Zulfiqar Ali Shallwani contended that he was posted after the complaint was made ; that the selection of the advertising agencies was made in a transparent manner as per SEPRA Rules; that the rates which were charged by the advertising agencies were not exorbitant; that he had not appointed the Deputy Directors as Directors; that there has been no allegation t].at the advertising policy was wrong; that he had no idea about the subletting of any of the contracts; that he was not aware of the payments that had been made to the advertising agencies; tJlat he had not benefited personally from the award of the contracts and at the most it could be said that he was negligent in the performance of his duties and as such he was entitled to post arrest bail. In support of his contentions he placed reliance on the cases of Waris Meah and another v' The State and another (PLD 1957 SC 157) Mushahtd Shah v. Federal Investlgatlon Agency (20i7 SCMR 1218) and Muhammad l{adeem Anwar v. Natlonal Accountablllty Bureau (PLD 2008 SC 645)'

g. Learned counsel for the petitioner No'3 Sarang Latif chandio contended that he was information officer billing at t* tJ:e time of the offenses; that in effect he was a rubber stamp who simply signed and approved all the documents which were placed before him and then forwarded them and t-?/

-1s6 was as such he was entirely innocent of any wrong doing and entitled to post arrest bail.

Turalng to the case of the advertlslng igencles (beneflclarles)

10.Learned counsel for petitioners No'4 and 5 who were ,l representatives of Adart advertising agency (Adart) being Gulzar Ali (petitioner No.4) and Salman Mansoor (petitioner No.5) contended that with respect to petitioner No'4 Gulzar Ali he was entitled to bail on both merits and medical grounds

1 1. With regard to merits petitioner No'4 Gulzar Ali contended that he was entirely innocent; that his company Adarts had provided the most competitive rates; that there was no material against him and as such he was endtled to post arrest bail.

L2, In connection with bail on medical grounds in respect of petitioner No.4 Gulzar Ali learned counsel submitted that the petitioner is botfr a sick and infirm person who had been admitted in hospital on numerous occasions for cervical dislocation and pains and that he also suffered from diabetes' He produced various medical documents in support of his contentions. He also stated that he was an elderly man of years of age and for all the above reasons he was entitled to bail on medical grounds.

13.Learned counsel for petitioner No'5 Salman Mansoor contended that he was innocent of any wrong doing; that he

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was a young man who had nothing to do with Adarts at tJ:e this time of the commission of the offense and that during there was time period he was studying abroad in Cardiff; that to post no material against him and as such he was entitled arrest bail

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14.Learned counsel for the petitioner No'6 proprietor of Daily Milan Umar Shehzad contended that he was completely paid the innocent of any wrong doing; that he had only been commissionwhichhewasentitledto;thattherewasno material against him and for all the above reasons he was

entitled to post arrest bail.

15.Learned Special Prosecutor NAB submitted that with regard to merits there was more than sufficient material on

record to connect all the petitioners to the commission of the

offenses for which they had been charged and in this respect

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took the court through various documents in support of his

contentions. He also relied on the finding on merit in the

bail consolidated pre arrest bajl order whereby the pre arrest of all the petitioners had been recalled by this court and thus

for all the above reasons submitted that the post arrest bail petitions of all of the petitioners should be dismissed'

16.With regard to the medical conditions of petitioner No'1 on Sharjeel Inam Memon and petitioner No'4 Gulzar Ali based the medical related material which had been placed before this court he submitted that this did not entitle them to bail on medical grounds based on the relevant law on the grant of

bail on medical grounds as they had not met the relevant

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-ls8 legal criteria. With regard to petitioner No' t he could be adequately treated in hospitai whereas petitioner No'4 had not even produced a report on the current state of his health by a duly constituted medical board' In support of his contentions he relied on the cases of Muhammed Aslam BaJwa v The State (PLD 2004 SC 7S0) and The State v HaJi

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Kabeer Khan (PLD 2005 SC 364)

17.We have heard the parties artd have carefully gone t-hrough the documents on record and considered the medical reports and other medically related 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' ls.Wewouldalsoliketomakeitclearthatthelrndingsin this order are only based on a tentative assessment of the material available on record and shall have no bearing on the

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trial which shall be decided on merits based on the evidence placed before the trial court.

General

19.At the outset, as we have done before in other similar NAB cases, we observe that cases of white collar crime are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be viewed in a holistic marlner and not in isolation' This is because in most cases the offence could not be committed a without the active involvement of all the accused in the chain of events which lead to the commission of the offense' However, notwithstanding this observation it is settled law

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that in cases of bail each of the accused needs in some way to be connected with the alleged offense and in the case of non bailable offenses such as this there are reasonable grounds for believing that the accused is connected with the commission of the offense for which he is charged'

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20.The current case, as with many NAB cases' is more a case of a joint criminal enterprise whereby every accused plays their role in order to achieve a criminal object all of which they were aware of and could not have been achieved without the active participation of all involved, resultantly a colossal loss to the tune of RS 5 billion was caused to the national exchequer.

21.The petitioners in this case all claim that they are entirely innocent and not connected to the offence in any way' Without going into a deep appreciation of the material on

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record it would appear that through the investigation report and material collected by NAB which we have scanned that nearly all of the accused to a greater or lesser extent are connected to the commission of the alleged offence' It is more a qrrestion of degree.

22.With regard to the Government officials we have also taken into consideration that they are paid and employed to a serve the State/Province out of tax payers money and have special duty to protect, safe guard and ensure that the tax payers money is well spent and not squandered needlessly or misappropriated through corruPtion ln performing their duties/functions lL/ l0

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23.For offenses of comrption charged under the NAO (white collar crimes) the Honlcle Supreme Court in the recent caseofRaiMohammedKhanvNAB(2017SCMRP.l152) has emphasized that the grant of bail in such casea must be construed strlctly and rigtdly even if, as in that case l' referred to above, the amount involved was on the lesser side being only apProx RS 12M (as opposed to over RS 5 Billlon as in thls case) in the following terms at P' 1 154 para7;

uUnder the principle of law and justice, each bail petition is to be dicided on its own merits and the iaw applicable thereto, however, this Court cannot that the t"-*it oblivious of the undeniable factbecome tendency of cormption in every field, has a threatening dangir to the State economy, striking on its rootJ. ThJpublic money, allocated for social sector and economic well being of the poor people' is consistently embezzled / misappropriated at a large scale and while the majority of the poiulation is deprived of essential daily utilities' iit" pure drinicing water, health care and educaiion facilities, etc. It has become the , foremost obligatlon of each and every lustitution, including the Judlcator, to arreet thls monster at thls itage, before lt goes out of pioportion, posing threat to the very survlval tnu State and State economy, therefore, the "f Courts shall apply the Anti-Corruptlon laws somewhat rigidly-, once in fact the caee ls made out, at ball stage, against the accused person' Disiinction, howiver, is to be drawn between the ordinary criminal cases and of com'rption on the above analysis and grounds, while dealing with bail matter to an aicused person, charged for such like crimes and a-lso at the time of conviction' once the case is proved against him then, Courts are not supposed to show arry mercy--by taking a lenient viewln the matter of sentence'"

24.Indeed, as in Rai Mohammed Khan's case (Supra) it is extremely tragic and rather ironic that the Information Department GOS is squandering billions of rupees and eating up billions of rupees in cormption associated with advertising

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campaigns on world water day, tinted mirrors and pressure horns, cultural festivals etc when such money could have been utilized to give genuine relief to the public on the ground in different parts of Sindh such as the provision of portable drinking water in rural areas, maintaining hospitals and schools etc which would have really improved the quality of .l.

life for many extremely poor people of this province and made an actual positive and benellclal dlfference to their llves.

Mens rea

25.With regard to the question of mens rea a number of counsel have stressed the lack of mens rea on the part of their respective petitioners in the scam through a number of authorities and as such they cannot be held liable. The question of mens rea can very often be inferred from the facts and circumstances of the case and as discussed below based on the material before us prima facie it can be inferred that nearly all the petitioners had the requisite mens rea to commit the offense for which they are charged in the reference through their acts, conduct, failure to exercise authority, misuse of authority , deliberately violating the Rules and sidelining other officers to give effect to their pre planned loot and plunder of the exchequer through an illegal and deliberate dual invoicing system operated by the advertising agencies (which we will discuss later in this order) which deliberately went unchecked by the Government officials which caused a colossal loss to the exchequer. The final determination of mens rea in respect of each of the 't/ t)

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petitioners will, in any event, be decided by the trial court after hearing all the evidence in the case.

Deallng wtth the petltlons on merlt.

26.When we recalled the pre arrest bail of the petitioners vide our order dated 25'lO-2O17 we dealt with each case of

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tJle petitioners in detail oa merits and found that there was sufficient material on record to connect tJle petitioners to the offense for which they had been charged. Following the case of The State v Zubair (PLD 1986 SC 173) the petitioners must show some new ground for their bail application or a ground which was not available at the time when their pre arrest bail was argued.

27.It is extremely doubtful that any of the petitioners have been able to produce any new ground or been able to rely on any material which they were not aware of at the time when l/ their pre arrest bail was recalled (apart from petitioner No.1 and 4's medical ground which we will deal with later in this order) but have simply repeated in large part their arguments at the pre arrest bail stage which have already been dealt with in that order.

28.In the case of petitioner No. 1 SharJeel Inam Memon we have already found that Ms Zeenat Jahan's complaint was entertainable under S. 18 of the NAO especially as at Para 3 it referred to financial corn:ption in the information department. A complaint to NAI}, like an FIR, only gets the ball rolling in a criminal inquiry/investigation and like an FIR where it leads to after inquiry/investigation and the collection t3

of evidence is another matter. In this case it lead to the petitioners and the filing of a reference against them for corruption; the selection process was not transparent; SEPRA Rules were violated; the question of there being no fixed rates for adverts has already been addressed and rejected by us in our earlier order rejecting pre arrest bail. For example, if say 20 2 minute slots were required to advertise the "Misconception on family planningl in our view the fairer and more transparent option was for each of the so called pre qualified advertising agencies putting in their sealed bids after taking account of their own bulk discounts, credit notes and even reduction in their 15olo commission so that the lowest bid could have been considered; the invoices on record clearly show the corruption by the advertising agencies and the petitioners from the information department tJrrough the system of dual invoicing which caused a loss to the GOS; it was not a case of pick and choose i'e. the media houses who aired the adverts were not included in the reference as they gave genuine invoices whereas the dual invoicing was adopted by the advertising agencies in connivance with the co-accused (including the Government official petitioners) in the information department which caused a colossal loss to the Government of sindh. with regard to the authorities cited by him we consider that they are of little, if aly, assistance to him based on the particular facts and circrrmstances of this case

29.Wlth respect to the cese of petltloner No.2 Zulllqar Atl Shallwanl we have already found tJ.at the SEPRA Rules,

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were violated; that the award of the advertising contracts were on a non transparent basis; that the rates of payment were exorbitant; that he deliberately allowed the Deputy Directors to perform the function of Director without any lawful authority and thereby he willfully failed to exercise his I authority and the fact that he allowed this practice to continue for so long under his nose clearly shows tltat it was not a case of negligence but was deliberately done/allowed by him to favour the advertising agencies; he was a senior and experienced bureaucrat and being secreta{/ would have known about the illegal subletting of contracts as he was part of the committee which selected the original 10 pre qualified advertising agencies which did not include the sub lettees;

that he was posted as secretary throughout the time when these illegalities took place. F\rrthermore, his contention that the process of awarding contracts to adverting agencies was t transparent is completely destroyed by the following chain of documents/events' On O2-t2-2013 the adverting agencies were selected at a meeting which he attended and was a signatory, on L7-O4-2OL4 the selected adverting agencies were duly informed of their selection however on 72-12-2OL3 before the advertising agencies had been informed of their selection the petitioner has signed and approved the payment of a bill to one of the selected adverting agencies apparently before it had even been informed that it was selected for crores of rupees. There are also other bill approval letters on record signed by the petitioner prior to the advertising agency being informed of its selection on 17-04-2014 and as

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( , 16s such this was not an isolated incident. This clearly shows tJ:at the whole selection process was a fagade and was a managed alfair and that petitioner Zulflqar Ati Shallwani was fully involved in it and knew all about the payments made to the advertising agencies and the amounts paid (which he approved) especially as under the Rules of Business

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he was tJ:e Chief Accounting Officer for the Information Department. We also find that the authorities relied upon by him are of little, if any, assistance to him based on the particular facts and circumstances of this case'

30.Wlth respect to the case of petitioner No'3 Sarang Latif we have already found that he was an experienced BPS 17 off,rcer who was fully aware of his responsibilities to check and verify the bills which he deliberately failed to do and thereby willfully failed to exercise his authority' We have been I shown at least 8 bills bearing his signature which were approved by him without being checked or verified' If he had checked and verified them then the scam of dual invoicing would have been uncovered.

31.lVlth respect to the case of petltioner No'4 Gulzar All we have already found ttrat he was a Director of Adart throughout the reference period; he was a majority shareholder of Adart; he signed agreements on behalf of Adart; he operated bank accounts on behatf of Adart and that he illegally massively overcharged the GOS for works carried out by his illegal sub contractors.

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32.With respect to the case of petltioner No'S Salman Mansoor we have already found that that he wrote dlrectly to the Minister (petitioner No.1) in his capacity as Media Manager for Adart on a number of occasions. For example, on 28.05.2014 in respect of media campaign in order to raise t awareness of child marriage Bill, on 29.O5.2O14 in connection with media campaign to combat law and order situation in Sindh, on 06-06-2014 in respect of media campaign for awareness of women and chitd protection Bill which all indicate that he had a number of meetings with the Mlnlster and was ftrlly involved in the procurement of business for Adart.(IR P.605,6 12, 619l.This material totally belies his claim tJ:at he was outside of Pakistan studying in Cardiff and had notJring to do with Adarts during the period when the offenses were committed. He signed on Adart letter head, under the title media manager and was also a director of Adarts.

33.Wlth respect to the case of petitioner No'6 Umar Shazad we have already found that he was an illegal subletee of Adart, He was not on the GOS pre qualified list of approved advertisers. By his own admission he established his business in 2013 and his first contract was the one in this case given to him by Adart' By his own admission he had no prior expertise or experience in advertising' He could not produce any corporate or other documents as to how the entity Daily Milan had come into existence' He could not produce aly invoice which he had given to any radio station' The invoice was given to Adart and he received 3o/o W

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commission. From the above in our view it is apparent that Petitioner No.16 Umer Shazad was illegally favored and given a verbal contract by Adart which simply enabled him to cause loss to the GOS and benefit to himself.

34.All the petitioners have been given a speciflc role in

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the refereuce. [n any event, after re hearlng this matter and re examlning the same based on the arguments brought before us we are of the view that no materlal has been brought on record to persuade us that our orlglaal Ilndlngs ln respect of each of the petltloners to coanect them to the commission of the offense for which they have been charged requlres iuterference whereia the specillc role of the petitiouers and the materlal connecting them to the commlssion of the offease for whtch they have been charged has been fully dlscussed' , Our order dated 25.-LO-2OL7 recalling the petitloners' pre arrest bail should be read as part and parcel of thts order and for the sake of brevity we reproduce our flndlngs on rnerlt in respect ofeach petitloner.

The Goverument oflicials

35.Turning to the case of petltioner No.l SharJeel Inam Memon in connection with his petition for post arrest bajl on merits (as opposed to medical bail will be dealt with later in this order) we have already held as under whilst dismissing his case for pre arrest bail at Para's 66 to 72:

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v3- "66.Turnlng to the case of petitioner No'l SharJeel Inam Memoa who was the concerned Minister at the time of the offense. He has been assigned a specilic role at para 3 of the reference which reads as under:

"3. The investigation further reveals that pre- qualification Jf advertising agencies - y-1" conducted in violation of Sindh Public Procurement Rules, 2010' The accused No'l SharJeel Iuam Memon, Ex-Minister Information' ^ duririg his tenure from 31'05'2013 to 22'07'2015 illegaiy approved releasing of official advertisement in electronic media for awareness campaigns through these so called pre-qualified advertislng .g"r.-"i"" without due competition between these advertising agencies and contracts to favorite advertising / release orders were issuedrates agencies at exorbitant even without c6nfirming the market rates in respect of ,R9r minute of FM & TV Channels as required in "J"t SPP Rules, 2010. Further, by misusing his authority, in some instances, the Accused No' 1 u,ppror"i directly the media plan submitted by the aivertising agencies which was subsequently got processedlhrough the Accused No'2 to 7 who are tffi""t" of Sindh Information Department, a clear violation of the said rules'

67.The first point to note is that with regard to the I Sindh Information Festival which contract went to Orient and other adverts e.g, on renewal of arms license and World Water day whicfi went to Evernew and other aJ.rertising agencies named in the reference there ls not even a request from the concerned department/Mtnistry e.g. Culture- and Tourlsm and ffone Mtnlstry for a medta campalgn oa record' This seems to have been decided alone by petitioner No'1 on his own accord completely illegally and against all rules and regulations ir cot t irra.,c" with the advertising agenciei. On a transitory review of the-Rules we are of tfie considered view that they apply to awarding contracts to making advertisements in respect GOS media campaigns .t a 'rni"n is apparent from a letter dated 06-0'6'iOtZ by the GOS placed on record by p.iitio"". No. f himlef thus the Rules had to be iollowed in this case which is further bolstered by the Advertisement Policy which was duly notified in the Sindh Government Gazette dated Ol'O7'2Oll whereby Para 2 speciflcally states that- the Rules are to be i complted wlth and the 5'161 statement of Muhammad Ayub Ali Khan and Meer Alam Jokio which point 'ZOf to violation of certain Rules' Letter dated O8-05- S Urtt"-med Ayub Chandio (Manager Enforcement) to NAE! again confirms that tJ'e Rules were violated l9

r61 when the advertising contracts were awarded (Vol' 1 P.316) The Advertising Policy, which amongst other things, aims to promote transparency and to get the *o"f for the GOS also provides at Para "o*p"titiveiates 2 under tire heading objective, "that the major objgctive^ of the Information Department is to publicize policies of the government of the day and to distribute / issue adveitisement to print as well as electronic media on merit basis ln proper - and Judtcioua manner, ln compllance wiln selient feature of the Adve-rtlsenent Pollcy, SPRA Rules 2O1O and the ! exlstlng Flnaaclat nute" aud Regulatlons'" In this as *" shall see there was a complete lack of merit """e and transparency in awarding the advertisements to the advertising agencies which were not awarded in a proper at a irrai"lous manner and were awarded in comptete violation of the Rules and the aforesaid policy which caused a massive loss to the exchequer.

68.A pre qualification advertisement was placed in "the Dar,rm" ne-spaper on L4-O9-2013 for advertising agencies to be uled by the GOS, on 03-12'2013 a ilequalification meeting was held whereby the competent authority appioved 1O out of 18 advertising agencies as pre qualifying. No detailed reasons have bEen given as to why these 10 agencies out of the 18 were considered as pre qualified and were preferred over the others contrary to S'24A of the General Clauses Act' The meeting on 03-12-2013 was attended by petitioner No.1 who admittedly was the competent authority and a letter was sent for his approval on 16-04-2014, which he duly approved, so that successful advertising agencies couta U" informed. The approval, as with the m--inutes are both signed by petitioner No' 1 one day later on l7-O4-2Ol4.On the same day the 10 selected agencies were informed of their selection.

69.As such when the Sindh Media Festival advertising campaign or any other GOS advertising campaign-w." .ot d it would be expected that the "id"t 10 pre qualified advertising agencies should have been coniacted after 17-04-2014 to make their presentations, competitive bids etc' Instead it appears itrat a letter to this effect was sent to all the 10 agencies on O2-Ol-2014 (i.e. 3 months before they were put on the panel).

70.On 09-01-2014 ttre petitioner No.l chaired a meeting along with petitioner No.2 where the 10 co-pat ies put up there presentations and the contract was- awarded to Orient McCann for the Sindh advertising Festival. Not a word was mentloaed ln thls meetlng about the prlces being offered by any of the other companles or market ratee, bulk dlscount or credit notis and the contract was only awarded to Orient and none of the other 9. There waa no competitlve btddtng. On 10-01-2014 the competent

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authority i.e. petitioner No'1 signe-d offon Orient' Oa 15 J.ir.ty (onri s days later) Syed Masood Heshml the CEO oi Orllnt on 15.01.2014 wrote dlrectly to to subs-equent meetlngs' l"titioo"t No.l referriag proposed sent the medla plan and commercla\ l"t approval. Thts was duly ipproved.by the Mlnlster u'n'itaterally without ait g lhe media plan down the ""t chain of c6mmand in he Information department for consideration which proposals would then have been prt ,p by way of summary for his approval by the I secretary.

71.The petitioner No'l pointed to. another pre qualification advertisement in the 'Dawn' dated iOtZ other pre qualification meetings to justify his stance but it seems apparent to us that these ^oa documents refer to the previous year and would not be applicable to the relevant time period of the Sindh f'L"tivat and other subsequent advertising campaigns which form a part of the reference' Thus, it seems apparent to us that based on the documents the contracts were awarded to all the advertising agencies for the Sindh Festival and other campaigns named in the reference in an illegal manner. With regard to Orient the short time framJ involved and the contents of Orient's letter whereby Masood Hashmi writes directly to the petitioner No. i who immediately approves tJre same in our view leads to the only reasonable inference that there was no real transparency in the award of tltis contract especially-tt as no prices were ever shown or compared *itt, other companies during the preslntation. There is certainly no materlal as to ini.l of the agencies offered the lowest rate and rates do not seem to have been dlscussed at all whlch ln our view would be one of the key conslderations in competltlve biddlng under the Rules and to show tranlparency' As such the Rules were flouted by petitioner No.l in order to favor not just Orient but ali ihe other accused advertising agencies named in the reference who were the beneficiaries of the scam to a massive extent and likewise the exchequer suffered a massive loss running into billions of rupees' It is in our view both inconceivable and incredible that no market survey of the prevailing rates was even attempted to be carried out or that no one in the information d.epartment had any understanding of how the advertisin[ agencies operated as the Information -been in existence and awarding department h-as advertising contracts regularly for years on end' Furtherm-ore, it appears ito* the record that 4 of the advertising agenciis which so benefited have already admitted iheir guilt and entered into volunta4r returns with NAB (namely M/S Connect Marketing for RS 31o,474,13i, M/S Value Added marketing for RS 20d$27,587, Ivf/S Xnine communications for RS 374,546,739 and M/S Insync Advertisement for RS

-1-t I

83,643,668).The complete lack of transparency in the^ whole pro"i"" is furt-her seen by the fact that most of tJle advertising campaigns which were awarded went to one advertising agency namely Evernew without any competitive Uiaaing and which did not even provide invoices for the work it did before payment was approved on some occasions. Evernew were communicating directly with petitioner No' 1 the Information Minister and were sending huge invoices with little if any detail which in some cases were I approved. prior tt the advert being run and had no trlnsmission receipts, no indication of at what time the advert ran but were rather unjustified lump sum bills which were deliberately not checked by the government officials yet were all approved by petitioner No' 1 being the Minister (see P.153-183 of IR).

72.It is also apparent from the aforesaid letter (from petitioner Hashmi of Orient) that petitioner No'1 directly approved the medla plan tn violatlon of the Rules i"a p.t+g of the NAB IR shows that petitioner No.l directly approved the payment of Orients bills without r"lease order which included cables, newspapers"rriand websites which no approval had been given-whictr the petitioner would have been well aware of .t a even Orient charged for FM radio Bills which it had no authority to charge for. Unsurprisindy 2l cheques from Orient amounting to RS 349494063 all dat;d 22-04-2014 were received on the same day for payment with no staggering in payment i'e' after each was shown. As wlth Orlent the other co- "arr.tt accused advertlslng agencies also communlcated t directly wlth the Minlster and he acted ln the same manner as he did wlth Orient regardlng release orders arrd approvat of medla plans. Thus taking into account all the above considerations in our view prima facie there is sufficient material on record to connect petitioner No.l with the offense for which he is charged which caused a colossal loss to the GOS and therefore his pre arrest bail granted by this Court is recalled with immediate effect.

36, As such after considering the arguments in this case we remain of the view that there is prima facie sufficient material on record to connect petitioner No.1 SharJeel Inam Memon to the offense for which he has been charged and as such his petition for post arrest bait on merits is dismissed.

37.Turnlng to the case of petitioner No.2 ZulIlqar All Shallwaal in connection with his petition for post arrest bail

-l-1L on merits we have already held as under whilst dismissing his case for pre arrest bail at Para's 73 to 74:

Turnlng to the case of petitloner No'2 Zulflqar All Shallwaut who was sicretary Informatlon and Archlves Department at the time of the offense' 7g. He has been given a specific role in para 5 of the reference which reads as under;

I "5. It is also apparent from the investigation that Accused wo.Z ZuUiqar All Shallwaal was posted as Secretary Information & Archives Department Government of Sindh from 19'09'2013 to 31.07.2015. He has, in his aforesaid capacity' misused his authority in Pre-qualification / -SSp of advertising agencies !V selection process violating Rules, 2O7O' Further' he delibera:tely and with matalide intention appointed junior oifictrs at the Post of Director Advertisement of Information Department who acted on his illegal orders and with their active connivance with each other he got processed for approval advertisement / awareness campaign in eiectronic media i.e. TV & Radio which were carried out through so-called pre-qualified advertising agencies at exorbitant rates without competition and ascertaining market rates' Due to his misuse of authority the national exchequer has suffered huge loss against payments of bills L on exorbitant and unjustified rates"'

74.With regard to petitioner No'2 virtually the same material refeired to in recalling petitioner No'l'spre arrest bail is applicable as he was a part of all relevant meetings and signed all the relevant documents which the Mitiister also signed.S.161 Statement of Muhammed A1'ub Khan is sufficient to show just a f-ew of the Rules *t i"t were violated and statement of Meer Alam Jokio the lack of competitive bidding. With regard to -the sidelining of senior officers in favour of his favorites it is apparent-from the complainant and S'161 statement of ZiinatJahan that senior officers were indeed malafidely sidelined and junior officers who were Deputy Directors were given tne de facto charge of Director by petitioner No.2 Io that they could in connivance with petitioner No.l and 2 put tire scam into effect. The junior officers are accused No.3 Ms Anita Baloch (a BPS 18 oflicer who was given the position of BPS 19) who.has absconded -been and declared a proclaimed offender by the trial court, petitioner No'3 Mansoor Ahmed Rajput and petitionir No.4 Muhammad Yousaf Kaboro, who all iollowed the illegal orders of petitioners No' 1 and No'2 and with matalide intention violated the Rules and ensured that the favored advertising agencies got the

r.l3 contracts and made massive exorbitant payments to them. The signature of these officials along with petitioner No.Z nna place on many of the important iocuments which this scam to take place' Thus view that taking all the above we are of the".r"tl"d considerations into account there is prima facie suflicient material on record to connect petitioner No'2 to the offense for which he has been charged which caused a colossal loss to the GOS and as such his pre arrest bail is recalled with immediate effect"'

I

38.As such after considering the arguments in this case we remain of the view that there is prima facie sufficient material on record to connect petitioner No'2 Zulflqar Ali Shallwanl to the offense for which he has been charged and as such his petition for post arrest bail is dismissed.

39.Turnlng to the case of petltloner No'3 Sarang Latif Chandio in connection with his petition for post arrest bail on merits we have already held as under whilst dismissing his case for pre arrest bail at Para's 77 to78 where he is referred to as petitioner No.5:

L

"TT.Petltloner No.S Sarang Latif Chandlo at the time of the offense was information ofllcer (btlltngl and has been given a specific role at para 7 of the reference which reads as under;

"The investigation also reveals that Accused No'6 Sarang Latii Chandio was posted as Information Officer- (Billing) in Advertisement Section, Sindh Information Department in BPS-17 from 17.t2.2O12 to 16.09.2014. During this period he processed bills for media campaigns at exorbitant iates without verification of transmission certificates and without ascertaining the market rates of each FM Radio and TV channel and processed the bills for payment. from AG Sindh bffi".. He did not obtain the invoices of the media channel and got approval

of over invoiced bogus bills in niuu.rci with his superior oflicers / "ot accused for payment which resulted in a huge loss to national exchequer'.

l2/

.I5-

78.In essence the role of petitioner No'S Sarang Latif Chandio was to verify the bills charged by the advertising agencies by comparing them witJl the transmisslon Eertificates whictr- they received from the T.V/radio station which aired the advert and which would have shown the amount which the T'V/Radio station actually charged the advertising agency and other relevant materiJ in this regard to ensure that the advert had been aired and at what rate' Sarang Latif Chandio however completely failed to check any of the bills which the T'V and radio channels made and were paid by tJ:e advertising agencies jnstead he blindly

I

relied on the fake and bogus bills which he received for payment from the advertising agrlcie.-s- which enabled iate ana exorbitant and unjustified bills to be paid to the advertising agencies. This was a complete faihrre to exercise authority on the part of petitioner No'S Sarang Chandio which tid to the l'oss of billions of rupees to-the state exchequer. Had he carried out his functions then such unjusiin"a tt a illegal payments could have been stopped. Fake bills ,r"tJ ptoc"sigd bV him and when the'sl are read in light of the 5.161 statement of Javaid Ahmed along with associated documents (P'297-293) there is little-doubt that petitioner No'S Sarang Chandio deliberately failed to exercise his authoriQt in order .to favourthebeneficiaries.Hisconductinfailingtoverify the bills was also in complete violation dealing of the Advertisement Policy in terms of the section with billings and payments which he would have been fully awarJ of. He miy not have been.a huge cog in the wheel but withoui his active involvement and L connivance with the other government co-accused the wheel could not have turnei and the scam could not have taken place and hence he is equally as liable' Thus, in our view there is prima facie suflicient material on record to connect him with the offense for which he has been charged and his pre arrest bail is hereby recalled with immediate effect".

40.As such after considering the arguments in this case we remain of the view tJ:at there is prima facie sufficient material on record to connect petitioner No.3 Sarang Lattf Chandlo to the offense for which he has been charged and as such his petition for post arrest bail is dismissed'

41, FINDINGS IN RTSPECT OF THE BENEFICIARIES

l (advertislng agencles) on merlts.

Introduction q/

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42.Whilst dealing with the case of the Government officials earlier in this order we have already found that there was deliberate and malafide misuse of authority/failure to exercise authority in violation of the relevant rules and regulations by the Government officials in connivance with the beneliciaries which caused a massive financial gain to the beneliciaries and a huge loss to the government exchequer'

43.There is both a general allegation against all the advertising agencies 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 advertlsing ageocles suPpressed the involces issued by the -eEt"ctaonels which had showed the actual ainounts, with ulterior motives and malaflde lntentlon ln conulvance wlth the offlclals of Sindh Information Departmeut and claimed much higher amounts as compared to the amounts invoices issued t by the media channels. Whereae, as per well settled piactice, advertislng agencles are entltled to get only 15% agency sommlsslon agalnst the total bill / invltce re&tued from the medla channel' (bold added)

44.At the outset it is both pertinent and relevant to observe that 4 other Media/advertising companies (M/s Connect Marketing Rrt Ltd, M/S Vatue Added Marketing Services Pvt Ltd, M/S Xnine Hrt Ltd and M/s Sync Advertisement P\rt 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 tJ.e I Ministry of Information and were faced with the sarne allegations as the advertisers in tJle reference by using the

'l'l t same modus operandi all adnrltted thelr gutlt and entered into voluntarSr returns with the NAB whereby they repaid their ill gotten gains.

45.The main defense of the advertising agencies was that they did not charge exorbitant rates and that they were fully ,t

entitled to charge the rates which they did' This was because according to them this was an unregulated industry' In this respect The Pakistan Broadcasting Association Rules and Regulations Governing Conduct of Advertising Agencies / MBHS provldes as under at Para 9.

"9. All accredited Agencies / MBHs shall be entitled to a maxlmum of 15% Lommission on the business placed by them with the Broadcast Houses and no Agency / NigH claim, demand or receive any commission or "h"[ compensation from "Broadcast House beyond the rate. Frovtded that at lts optloa' a "p."ifi"d House may allow a cash dlscount to any Bloadcast Agency / MBH'.

I Thereafter Rules aad Regulatlons Governlng conduct of advertlslng agencies (As adopted at the Er<traordinary Gineral Councll Meetlng held on 29th Decembe4 1977 and amended by the Extraordinary General Councit Meetlng held on March, til, 2oO3, March 31, 2O12 and March 81, 2015| Provided as under'

"7. All accredited agencies, whetleer provisionally or full accredited, shall be entitled to trade discount, not exceeding 15% of the lnvoice on the buslness placed ty tnem with tJ:e member publications and no agency shall claim, demand or receive any trade discount or compen"lqol from a membir publication beyond this specified rate. Provlaed ihat at lts optlon a member publlcatlon may allow e cash discount upto tSy" to .o .g"o"y ia case of settlemeat of lts bills by the agency wlthln 3O days of billiug in caaea Lr rouy-"."tlait"a agency aad 15 days ln case of provislonally accredlted agency'' ... lu

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46.Thus, according to the petitioners 4 and 5 (representatives and directors of Adart Agency and petitioner No.6 Umer Shazad proprietor Daily Milan they were entitled to keep (a) 15% commission as of right (b) any other form of bulk discount or (c) credit note availed by them.

I

47 . However none of petitioners 4, 5 and 6 were able to refer to any documents such as transmission certificates, bulk discounts credit notes which they had received and were entitled to keep in support of their contentions'

48.Modus Operandl: In effect by way of an example of what was 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 d.iscount say 157o, then kept another amount by way of credit ^ note say another 157o, so the advertising agency would only pay RS 55. However when the adverLing agency invoiced the Information Deparlment GOS for the advert run by the T'V company the advertising agency gave a dllferent invoice which would only show RS 1OO less 15%o commission so that the cost of the 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 pald to the T'V Conpauy by the advertlslng agercy hae been dlshonestly suppreased by the advertlslng agency in its lnvoices to the GOS' 49, Even if we accept that the advertising agency was allowed 157o commission as per Para 7 of the amended Pakistan Broadcasting Association Rules and Regulations Governing Conduct of Advertising Agencies / MBHS only an extra 15%o was available making a total of 3Oo/o if the bills were paid within a specified period' However as is apparent from the documents on record the advertising agencies (petitioners, 4, 5 and 6) were claiming far more than this as indicated in the relevant tables in the reference which have not been disputed by petitioners 4, 5 and 6'

50.Had the bidding Process been done in a fair and transparent manner through competitive bidding in accordance with the relevant rules (which we have already found that it was not) then such practices could have been prevented and such illegal and unnecessar;l loss would not have been caused to the GOS.

51.The cases of petittoner No.4 Gulzar All petltloner No.S Salman Mansoor and petltioner l{o.6 Umar Shehzad (the proprletor of Dally Milan) are to some extent lnterlinked in that both petltloners 5 and 6 wesG Dlrectors of Adart Advertlsing Agency to whom the GOS )l

Ministry of Inforaatlon lllegally and ln connlvance with lt awarded lt advertislng contracts whllst petltioner [Yo'6 t?

waa one of Adart's illegal sublettees of the advertislng contracts awarded to it by the GOS lnformation department.

52.Turnlng to the case of petltloner No'4 Gulzar Ali in connection with his petition for post arrest bail on merits we have already held as under whilst dismissing his case for pre

arrest bail at Para's 116 to 119 where he is referred to as petitioner No.14:

116.Turnlug to the case of petltloner No'14 Gulzar Ali who w"J a Director of Aaart at the time of the scam which only dealt wit.l: radio commercials/adverts as opposed to t.V. As we have already discussed with ,.g*d to the case of petitioner Riaz Munir the NAB ,rid*. the NAO were empowered and had jurisdiction- to charge Gulzar Ali as a Director of Adart' ApaJt from-his g"r"iut role of over invoicing in the reference he has Eeen given a specilic role in the reference at para 13 which reads as under:

"As per investigation report Accused No'14 Gulzar L AIt and Accused No.15 Salman Mansoor are both Directors of advertising agency M/ s' Adart Karachi Rrt. Ltd. (Adart) whictr hai received Rs'317 Million from Sindh Information DeparLment' against release of advertisement campaigns on Electronic Media (FM). The Accused No'14 used to operate the account of the company and is its major shareholder, whereas the Accused No'15 being Director acted in connivance with t'lee other accused persons which resulted into loss to the national exchequer -by to the tune of Rs.229,536 ,4131- submitting bogus ,bills with fake transmission certificates and also billed excessively / exorbitantlY"

117.He was a Director of Adart throughout the -signed he was a majority of Adart; he reference period; shareholder of Adar! he agreements on behalf operaied ban-k accounts on behalf of Adart and as can b; seen by the table below he illegally massively overcharged the GOS for works carried out by his illegal x sub cont-ractors (Daily Milan and Media Power)'He has not been able to pioduce a single invoice or other document in support of his contention that Adart only charged 157o commission and contrary to his contention

Y7

Adart and its illegal sublettees deducted far more than 15% commission as is shown by the table reproduced below which shows how much loss Adart caused to the national exchequer' Fake invoices of Adart and over billing can be found at P.289, 2gl, 3Ol, 309, 31 I of the IR. Sirch illegaltty and loss ls further bolstered by the fact thai eaart attempted to enter lnto a VR wtth NAB whlch accordlng to them waa on accouat of the IO "twisting their arm'' Their argument however of coercion by the IO ts totally belied by the l fact that NAB did not accept thelr VR' Adart's letter to NAEI dated 20-11-2015 requesting a VR is attached with Adart's CP.No.3286ll6 filed before this court at Annex D. In fact so desperate were Adart to enter in to a VR and thereby admil their guilt that t]rey even filed CP.No.3286 /16 before this court seeking a direction that NAB accept their VR at prayer clause @ of the petition which was dismissed by this court' Adart Bank Accounts

s. Chauael (FM) Araoult Actual luvolce Dlffersace/losl No. recelved from amouut of the to natloael Govt. by the Cbanael (Re.l oxcboquer Agoacy lRr.) lRr.O I Hot FM 105 115,197,183 2,057,680 11,5181,382 Network 2 Jeay FM 88 29,336,200 997,672 29,L62,LO6 Network 3 FM lOO Pakistan 45,673,033 t,234,O44 44,738,989 4 FM I04 Kashmore 20,095,450 204,764 19,89O,6qq 5 Josh FM 99 20,563,250 Fake TCs 20,563,250 Karachi /Hyd

L 23O,865,116 4,494,160 229,536,4L3

118.In our view the case of Adart illustrates well the complete farce and illegality of this entire scatn as we strati trigtrtight as fotlows. Adart allegedly were short listed on-th" COS advertising agency panel due to their vast experience and expertise in the field of advertising' It was ihen allegedly after various presentations able to convince the GOS [tt"t it had the capacity, ability and expertise over and above any other adverting agency to conduct a first rate advertisement campaign if it was awarded a contract by the GOS. Based on all these factors the GOS awarded it the relevant advertising campaign at vast expense. So what does Adart then do? Does it use its experience and expertise to carry out a first rate advertising campaign on behalf of the GOS as it had undertaken to do if it was awarded the contract after its various wondrous and ground breaking presentations?

-contract No. Instead it iltegally sublets the entire of the campaign to two one man bands (Daily Milan and M/S Media Power Link both of which are sole proprietorships) which are not on the approved panel of .dul.ti""rs for the GOS. Even then quite incredibly h.- 3l

-1Bl

Adart's agreement with these two one man bands is verbal rxrilh nothing in writing. No approval was sought by Adart from the GOS to sublet its advertising contract to another entity which was not on the GOS's approved panel which makes a complete mockery of the whole concept of the Rules, the Advertisement Policy, merit, transparency, the need to advertise in the newspapers' pre qualify etc,

119.Thus, based on the material before us we are prima facie of the view that there is sufficient material l.

io connect petitioner No.14 Gulzar Ali to the offense for which he has been charged and hereby recall his bail with immediate effect".

53.As such after considering the arguments in this case we remain of the view that there is prima facie suflicient material on record to connect petltioner No.4 Gulzar All to the offense for which he has been charged and as such his petition for post arrest bail on merits is dismissed'

54.Turning to the caae of petltioner IIo'5 Salman Mangoor in connection with his petition for post arrest bail on merits we have already held as under whitst dismissing his

L

case for pre arrest bail at Para's l2O to 121 where he is referred to as petitioner No.13:

"12O. Turning to the case of petltioner No.13 Salman Mansoor who was a Dlrector of Adart at the time of tl:e scam. We have seen from the record that he wrote dlrectly to the Minister (petitioner No.1) in his capacity as Media Manager for Adart on a number of occasions' For example, -on 28.05.2014 in respect of media campaign in order to raise awareness of child marriage gill,'on-2g,0 5.2014 in connection with media campaign to combat law and order situation in Sindh, on 06-06- 2Ol4 in respect of media campaign for awareness of women ana tfrita protection Bill which all indicate that he had a number of meetings with the Minister and was fully involved in the procurement of business for Adart.(IR P.605,612, 619) More importantly he signed in his capacity as media manager massively ilegafly inflated invoicis at RS 6000 and 9500 per minute for x the Radio adverts which he had illegally sublet to either Milan or Power link who had been charged by the radio station a much lower rate as discussed below in the cases of Umer Shehzad (Milan) and Syed Naveed (Media

L,

Power) all of which were approved and paid in connivance with the Government official petitioners named in this order whose signatures are on the release orders (IR 605 to 611, 672 to 618, 619-6241' For example, just one of the letters which he sent to the Minisler is set out below for ease of reference: Adarts Karachi (Pvt) Limited.

So cie ty, Share Fai sal, Ker achi-7 4O0, Peki stan \ ptrone g+S5 27 7 g, 34551 483, 34 552 427 F ax-34 55847 4 E-mail: adartskarac ail.com To, The Minister, Dated: 29/51L4 Government of Sindh Karachi.

Subject Request for Electronic Medla Camoalgn Arproval

Respected Sir, As per our discuesion ln the meeting' Please fini attached the summary of medla plan regarding "Campaign on Electronic Media (FM "to comtai law and order situation in nadiosl Sindh" in this regards you are requested to kindly approve the media pl'an for the release order and for further Process.

We hope to have a long-term business relationship with Information Department Government of Sindh.

Thanking you in anticipation' (bold added) sd/- Media Manager

(SALMAN MANSOOR)"

121.The media plan was illegalty approved by th9 Minister (petitionei as weri the massively inflated 'provided No.1) the signature of petitioner invoices under No. 13. As such we completely - reject the stance of fetitioner No.13 Salman Mansoor that he played ,.irt ufty no role in Adart being awarded advertising contracts from the Information bepartment GOS and claiming and being paid for massively over inflated bills' The miterial referred to above reveals that he pUyea a full part ln lllegally over billiag the GOS if"i.g with his Adart Dlrector petitloner whilst t{o' 14 GuhLr Ali. They were partners in crime; room petitloner No. 14 Gulzar All was in the engine dealing with the tllegal sub contracting and ,pur.firrg the bank accounts petitioner No'13 Salman Mansoor was the ttfacett of Adart who was attendlng all the meetlngs wlth the Mlnister and q

other offlclals of the Information department to enaure that advertislng contracte were awarded to Adart aud tbat the tllegally masslvely tnflated btUs oiea"tt were pald tn connlvance with the offlclals of Information department GOS. Thus, we find that prima facie therle is sufficient material on record to connect tJ:e petitioner to the offense for which he has been charged ana as such his pre arrest bail is recalled with immediate effect"

55.As such after considering the arguments in this case we remain of the view that there is prima facie sufficient material on record to connect petltioner No.S Salman Mansoor to the offense for which he has been charged and as such his petition for post arrest bail is dismissed'

56.Turning to the case of petitioner No'6 Umer Shehzad who was Proprletor of Daily Milan in connection with his petition for post arrest bail on merits we have already held as under whilst d.ismissing his case for pre arrest bail at Para's 122 to 124 where he is referred to as petitioner No' 16:

'l22.Turning to the case of petitioner No'16 Umer Shazad who was Proprletor of Daity Mllan at the time of the scam who was illegally sublet a part of the work by Adart.

123.ln addition to his general role of suppressing invoices he along with petitioner No'15 Syed Naveed have been given a specific role at pata 14 of the reference which reads as under;

"14.lt is also transpires from investigation.reportof that Accused No' 16'U-.t Shahzad is Proprietor Daily Milan, and Accused No'17 Syed Naveed is Proirietor of Media Power Link, who carried out advertisement campaigns in Electronic Media on behalf of accused-ttto.t+ and 15 and as such received amounts of Rs. 124,03 1 ,247 l- and Rs.121,955,6921 - respectively in their accounts from Accused No. 14- They have connived with accused No.14 and 15 in submission of fake and forged invoices and transmission certificates and atso tiUea excessively / exorbitantly and as such

1gt)

they are jointly and severally liable with the other accused Persons".

124.Petitioner No.16 Umer Shazad was an illegal subletee of Adart. He was not on the GOS pre qualified list of approved advertisers' By his own admission tre es[aUtlshed his business in 2013 and his first contract was the one in this case given to him by Adart' By his own admission he f,ad no prior expertise or experience in advertising' \ He could not produce any corporate or other documents as to how the entity Daily Milan had come into existence. He could not produce any invoice which he had given to any radio station' The invoice was given to eaart and he received 3%o commission. From the above in our view it is apparent that Petitioner No.16 Umer Shazad was iliegally favored and given a verbal contract by Adit which simply enabled him to cause loss to the GOS and benefit to himself. It may be correct that Adart was primarily responsible by pointing to Adart's bills tt the GOS which were massively inflated but this passing on the blame (interestingly Adart blamed him for the loss) cannot aUiotve him of his own criminal liability' The fact that he gave no invoice to any radio station and there iJno material on record to show that he negotiated competitive rates with the radio stations shor rs he has connived with Adart in causing a massive loss to the GOS' Furthermore' the rec6rd shows that the S' 161 Statement of Qazi .r Mateen is of no assistance to him (IR 275)'FM Radio 1OO's letter (lR P.2771 to NAB by Qazi Mateen simply says that TC's were given to Umer Shehzad whlch he was unable to produce and that an amount was also received from him' A perusal of the verification certificate (lR P'2237 shows that he was charged RS4OO per minute by FM 100, a number of invoices were fake, and even otherwise he was charging Adart RS 5,OOO per minute which was a massively over inflated biil (lR 109 Bill dated 07 -O2-2OO}) . Likewise S ' 16 1 Statement of Muhammed Feroze Alam of FM 104 Kashmore (lR P.2g5l, Kashmore's letter dated 01-04-2016 (IR 297) iiashmore charging Umer Shehzad RS 200 per

'SOOO

min 0R 2293), and Adarts charging GOS RS p". *in (lR 00000111)which were massively over inflated bills by both parties' Other such examples are also present -oue. on the record' Thus, Umei Shehzad *a" charging Adart massively and Adart were again over charging the GOS massively on top of the amount which Umer Shehzad had already overcharged' Thus in our view there is prima facie sufficient material on record to connict him with the offense for which Lr-

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he has been charged and as such his interim pre arrest bail is recalied with immediate effect"

57.As such after considering ttre arguments in this case we remain of the view that there is prima facie sufficient material on record to connect petltioner No.6 Umer Shehzad to the offense for which he has been charged and as such his petition for post a.rrest bail is dismissed' Ball on medical grounds

58.Turning to the case of petitioner No'I Sharjeel Inam Memon in connection with his petition for bail on medlcal grounds.

The law ou bail on medical grouuds.

59.The statutory basis for the grant of bail on medical grounds can be found in the first proviso to 3'497 Cr'PC which provides as under:

"497. When bail may be taken in case of non- bailable offence, (1) ifhen 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 punishible 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 auy sick or inflrm peraon accyg! 9f such an offence be released on bail"' (bold added)

60.After a detailed study of the law on medical bail as enunciated by the superior judiciary in the case of w

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Ktfayatullah V Federation of Pakistan (2017 P'Cr'I-J 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 2821 and Peer Mukaram U[ Haq V NAB (2006 SCMR P.L225), where it was held at P.65 as under:

uFrom the above discussed position it is clear to us that the bail on medical ground can be gIanted 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 iredical ground. The correct crlteria for grant of batl to an accused in a non-bailable case' on , medical ground, ln our view, would be that the sickness or ailmeut with whlch the accused ls sufferlng is such that lt cannot be properly treated witt in the premlses of Jail aud that some apecialized treatment is needed and his contlnied detentlon tn Jdtl ts llkelg to qffect hls capacltg or ls ha.zardous to his ltfe"' (bold and italics added)

61.Thus, the test would therefore appear, in non bailable cases such as the instant case, to have the following limbs as set out below a]l of which in turn the court would need to be satisfied of, based on the medlcal reports, before the Court before bail on medical grounds can be gSanted under the first I proviso to,5.497 (1) Cr.PC at the courts discretion based on the particular facts arrd circumstances of each case' )e

(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

(b)that some specialized treatment is needed and

(c)his continued detention in Jail is likely to alfect his capacity or is hazardous to his life.

I 62. Now turnlng to whether the medlcal reports before us meet the legal requirements of medlcal bail bearing in mlnd that the accused ls already admitted in the JPMC hospltal?

63.We may add at this junction that during the hearing of these petitions, as per documents very fairly and candidly frled by learned counsel for petitioner No.l and not by the NAB, the Hon'ble Supreme Court in HRC No.4977 l2OlA (regarding reported shifting of accused of NAB Namely Sharjeel Inam Memon from Jail to Hospital) through an order I dated 17-02-2018 sought an undertaking from the IGP that petitioner No.l would be removed from the JPMC back to prison since in effect there was no specific order by the accountability court that he should remain hospitalized whilst the medical boards were carr5ring out their various tests and that:

"However, there is nothing on record to show as to whether the accused despite his admission in hospital was examined by the sajd medical board nor any recommendation of the medical bard is available on record except a letter from Accountability Court directing Deputy Director JPMC to fix a date for final surgery of accused. Besldes, there is nothlng on record to show that the accused was suffering from l, any disease whicb elther could not be treated tn jail hospltal or would endanger the life of the accused, in case he ls not tlmely treated. Perusal of order of the Accountablllty Court reflects that at the

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r88 relevant tlme the accused was not sulfering from any terminal dlsease which could not have been treated/ad,"lnlstered in Jatl hospltal. Perusel of entire record reveals that there ls uot a single report would Justify his retention in hospital.

In the circumstances, Inspector General of Prison undertakes to immediatety shift the accused to the prison and to submit a compliance report by 3'00 p'm' in the present scenario we would also llke to iseue notices to the Doctors of the medical board named I above to submlt thelr recommendatiou on the basls whereof the acqused was retained in hospltal'D (bold added)

64.In response to the above set out order a report was submitted by Dr.A.R.Jamali who was chairman of the JPMC's 3 medical boards on 23-02-2018 with copies of petitioner No,l's medical history and reports along with the personal affidavits of those Dr's who sat on the JPMC medical boards as to the correctness of the medical reports which they had signed in respect of petitioner No. 1.

65.A bare perusal of the above referred order dated l7-O2- 2018 passed by the Hon'ble Supreme Court in HRC No.497712O18 would suggest that the fate of the medical board reports which petitioner No,1 has relied on in this case are subjudice before the Hon'ble Supreme Court in the aforesaid HRC case and hence we have refrained ourselves at tJ:is juncture to make any observation on petitioner No'l's plea for the grant of bail on medical grounds.

66.Tutning to the case of petitioner No.4 Gulzar All in conaectlon wlth his petition for bail on medlcal grouads.

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67.We have already set out the relevant law above so the only issue before us is whether the medical material before us meets the legal requirements of medical bail?

68.At the outset it is obsenred that no oplnion has been glven by a lawfully constltuted medical board as to:

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(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

(b)that some specialized treatment is needed and

(c)his continued detention in Jail is likely to alfect his capacity or is hazardous to his life'

69.Instead a number of medical opinions from various doctors have been filed to show that the petitioner has received medical treatment for his multiple ailments and is a diabetic.

70.Although we are sympathetic to the medical condition of petitioner No.4 Gulzar Ali especially keeping in view his advanced age of 78 years based on the medica-l documents which he has produced before us we are of the view that petitioner No.4 Gulzar Ali at this polnt in time has not been able to make out a case for the grant of bail on medical grounds based on the legal test as outlined above largely because he lacks an opinion of a lawfully constituted medical board to this effect and as such his petition for bail on medical grounds is dismissed. He may, if so advised, request the concerned accountabiiity court to constitute a medical

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board to examine his aliments to see if the above legal test for bail on medica-l grounds is met and may then, if so advised,

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again approach this court in respect of this issue' As was held in the case of HaJt Rahimullah V State (1970 SCMR 514) old age alone is not a ground for bail however, in our view subject to the findings of a medical board it may be a factor for consideration in deciding his bail application based on I humanitarian grounds' However, keeping in view case of Imtiaz Ahmed V State (2017 SCMR 1194) if the jail medical superintendent is of the view at aly particular time that petitioner Gulzar Ali's life may be at serious risk due to the nature of his illnesses whilst in jail he shall, under intimation to the concerned. accountability court, immediately transfer him to the appropriate hospital for check up where he shall be further dealt with as per the advice of the attending doctors

SUMMARY

I Post arreet ball on merlts is dlsmissed ln respect of 1. Sharjeel Inam Memon

2.Z:ulfiqar Ali Shallwani

3.Sarang Latif

4.Gulzar Ali

5.Salman Mansoor

6.Umar Shahzad

Post arrest bait on medical grounds is dismissed in respect of Gulzar Ali

Slnce the medical reports relied upou by SharJeel Inam Memon which are connected with his plea for post arrest bail on medical grounds are currently, as mentioned earlier in this order, before the Honble Supreme court for consideration as v 4l

a.l tql such we do not at this juncture deem it proper to make any findings in respect to this aspect of his pe tion

JUD

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CHIEF JUS TICE

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