Dr. Atta Muhammad Panwar (Petitioner) VS NAB (Respondent)

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t o RDER SHEET

IN'THE HIGH COURT OT SINDH AT KARACHI

Before Mr. Justice Ahmed Ali M. Shaikh, CJ Mr. Justice Mohammed Karim Khan Agha

CPs No,D-8232 of 2017 8313 of2017 30 3 of2016 & 1664 of2016 Dates ofHearing: 07J22017, 19.12.2017, 16.1.2018, 01'2.2018, a 06.3.20 8, 09.3'20 I 8 wi 21 .3.2018

Date of Announcement: 10.04.2018

Petitioner Mansoor Ahmed Rajput through Mr. Zubair Ahmed Rajput, Advocate in CP No.D-8232 of 2017 Petitioner Zultiqar Ali Shallwani through Mr. Shabeeh Ishrat Hussain, Advocate in CP no.D-83 13 of 201'1 Petitioner Noor Mghammad Leghari, present in person, through lt4+-Ahmed Khar3elouch, Advocate in CP No.D-1664 of 2016 Petitioner Dr. Atta Muhammad Panhwar, present in person, through Mr' Aamir Raza Naqvi, Advocate in CP No.D-303 of 2016 iv'ir. irtiuhamrnad Altaf, Special Prosecutor, NAB for respondent Mohammed Karim Khan A a J.- Through captioned petitions, petitioners Noor Muharnmad Leghari and Dr. Atta Muhammad Panhwar seek pre-arrest bail while petitioners Mansoor Ahmed Rajput and Zulfiqar Ali Slrallwani ask for post arrest bail in Reference No.30 of 2016 filed by the + respondent under Section 18(g) read with Section 2ab) of National Accountability Ordinance, 1999 (NAO).

2.On receipt of compiaint against involvement of officers/officials of irrformation and Archives Department, Government of Sindh, in embezzling millions of rupees in a ploject "Facilitating Working Environment and Supply of Compurel Hardware, Software, Printers, Scanners and Networking of Informatiou Department" (the proiect), NAB conducted inquiry which was later converted into an investigation. on 15.5.2012 the chief Minister- Sindh accorded approvai of the project and lnformation and Archives Department, Government of Sindh on 10.1 .2012 got published Expre;sion of Interest (EOl) in different newspapers inviting interested firms/companies having souud technical a11d proven experience of similar working to collect EOI document and submit the same for pre-qualification. Investigation further revealed that in terms of Sindh Public Procurement Rules, 2010 (SPPRA) a Consultation Selection Committee (CSC) under the Chairrnanship of accr"ised/petitioner Dr. Zultiqar Ali Shallwani, the then Director General, lntbrn.ratiol a:rd Archives Department was constituted to, inter alia, shortlist the consultants, evaluate technical and financial proposals, approval and issuance of Request for Proposal (RFP) to the selected companies. F'rorn eighi bidders the CSC shortlisted four, including lWs

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Prime Trading for award of contract and forwarded the same for approval to approval of Dr. Atta Muhammad Panhwar, accused/petitioner, who accorded Trading' which the project to the tune of Rs.193.971 Millions to lWs Prime However' has no previous history and experience in Infomation Technology' the contract was signed.

IWs Prime Trading viotating the terms and conditions of the

Sistech' which agreement dated 19.10.2012 subleted the project to M/s f M/s ' canied out certain works causing loss of Rs'126855998'00' Moreover' from M/s Real Prirne Tracling procured hardware and LAN/WAN accessories Tech in Rs.14.9 Million against which it received Rs'35'45 Million from the Aijaz Ahmed' Government. During investigation it also revealed the accused Proprietor of M/s Prime Trading willfully and with ulterior motives

members of CSC submitted take company profile and in connivance with number fumished succeeded in obtaining the contract. The Sales Tax Return in the profile was actually in the name of Ibrahim Traders' Investigation of further revealedthat item wise GST was wrongly calculated at the rate calculated fairly' 13.5% instead ol 16% and had the item wise GST was bidder' runners up M/s Sistech Systems would have been the successful pre-arrest'

4.During pendency ofCPs No'1664 and 303 of2016' interim + Dr' Atta bail was granted to the petitioners Noqr Muhammad Leghari and Muhamn.rad Panhwar

5.Mr. Aamir Raza Naqvi, Advocate' counsel for'Dr' Atta Muhammad that petitioner was innocent and after initiation of the Panhwar contended to project remained Secretary only for three months i'e' from O4'92012 part of CSC' only 17.12.2012. He further submitted that petitioner was not a trausparent manner approved its reconrmendations after due consultation in that NAB has and made payments to M/s Prime Trading' He also submitted of interim malafidely indicted him in the Reference and prayed confirmation pre-arrest bail on same terms and conditions' tt r:, |Yltek<rh Kq.^,rczo.

6.MF-Akl€d-KJ .i ' Advocate for Noor Muhammad Leghari member of submitted that petitioner is completely innocent as he was not awarded to IWs CSC, assumed the charge on 05.12'2012 after contract was Prime Trading ar.td even first payment was made by co-accused Dr' Atta of Muhammad Palhwar. He further submitted that he approved release and other second installnrent subject to completion of all codal formalities nrembers of CSC, including co-accused Zulfiqar Ali Shallwani and Mansoor

Ahmed Rajput, informed that hardware and software equipment installed submitted that the satisfactorily were opemtive. As to his alleged malaf,rde he

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yielding in suspension of I.O., who malafidely involved the petitioner in this case. He, therefore, prayed for confirmation ofpetitioner's interim pre-arrest bail.

7.Mr. Zubair Ahmed Rajput, Advocate for petitioner Mansoor Ahmed Rajput submitted that as the Secretary, CSC, he ensured observation of relevant rules and regulations like advertisements wer€ published, lvI/s Prime a Traders imminently qualified for the job and most deserving bidder was recommended for selection to the Secretary. He further submitted that he was .

made lcapegoat in the case as other members of the CSC were not anaigned and he piayed no role in technical and financial evaluation of the companies/bidders. Learned counsel further submitted that the deduction of sales tax was thejob ofAccountant General and the prosecution has failed to collect sufficient evidence connecting hirn with the commission of alleged offence, therefore, post-anest bail be granted to the petitioner. He in support of his contention has relied upon the cases reported in PLD 2003 SC 668, 2016 P.Cr.L.J 79,20t6 P.Cr.L.J. 76t,2002 SCMR 282,2012 SCMR 1732 and an unrepofied order dated 28.4.2011 passed in the case of Hafeezullah , Abbasi v. Federation of Pakistan.

8.Mr. Shabeeh Ishrat Hussain, leamed counsel for petitioner Zalfrqar Ali Shallwani contended that petitioner is innocent and adhered to SPPRA Rules and it was a case of pick and choose as he informed NAB of the process and concerned persons dealing with SPPRA Rules but did not receive any response. He further submitted as Chairman of CSC he alongwith other members of the committee evaluated the bids and most deserving company was recommended fol selection. In support of his contention for grant of post-affest bail, he has relied r"rpon the cases reporled in PLD 2003 SC 668, PLD 2008 SC 645, 2008 SCMI{ I I 18 an<l PLD 2Ol7 Sindh 120.

9.Per contra, learned Special Prosecutor, NAB vehemently opposed the captioned petitions seeking pre and post arrest bails. During course of arguments he took us to various documents availab.le on record fully ,i

connecting the petitioners with the commission of alleged offences. He veherrently rebutted the allegation that I.O. has malafldely implicated petitioners in instant Reference.

10.We have heald the leamed counsel for the.petitioners, Special Prosecutor, NAB and rninutely gone tlrrough tlie material available on record.

It is settled principle of law that each bail petition is to be decided on its own merits but the Courts cannot remain oblivious of rampant tendency of corruption in every sphere most particularly misappropriation and

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application of anti-comlption embezzlement of pubiic money manifesting laws more rigidlY.

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11.With regard to the case of Dr' Atta Muhammad apparent from the record that petitioner Dr' Atta Muhammad Panhwar did not advertisements' was not a part initiate the project, had nothing to do with the Information Department once of the CSC and only took charge as Secretary Y completed' It is true that he the while recommendation process had been Prime Trading' signed the contract approved the award of the contract to ivl/s we have seen from the minute and approved its first payments, however' sign sheets that notwithstanding his belated entry into the process he ciid not show that he called for off blindly on recommendations' The note sheets technicalcommitteemeetingandfinancialevaluationinordertoconsiderthe proposal/recommendations and directed that all communications be sent to the SPPRA Rules on 15'8'2012' NAB, TIP and the persons concemed w'ith was awarded to M/s Prime Even when he was informed that 'the contract lr'as approved with the M/s Prime Trading he noted that before the contract Tradiug that it was to be ensured that all the legal/policy and qodal marked on the note sheet that formalities had been complied with' He also That he was fully briefed by various proposals needed to be considered' and rules had been complied

petitioner Shallwani that all codal formalities no experienced officer he had with and since petitioner Shallwani was an 'i'hus, it would appear from the record that the petitioner reason to doubt him.

that the belated appointment to ensure was making some attempts, despite his that the per rules' As such' we consider award of the contract was done as caseofDr'AttaMulrammadPanhwarisacaseoffurtherinquiryvis-a-vishis bail granted to him is hereby criminality' Accordingly, interim pre-alrest confirmed on same terms and conditions' Muhammad Leglrari'

12.With regard to the case of petitioner Noor Panhwar as Secretary successor of petitioner Dr' Atta Muhammad the of the CSC which recommended lnformation Department' he was not part ' to M/s Prime Trading; that he did not sign the appioval of the contract contract; that there is nothing on record to indicate that he knew that the ilregally sublet to M/s Sistech; that contract to M/s prime Trading had been by petitioner Dr' Atta the first payment had already been approved that the first part of the project Muhamrnad Panhrvar" which woLrld indicate had been completed satisf'actorily and that in the minutes of the Project Archives Department' Government Monitoring Committee, Information and of the project dated 18'l'2013 of Sindh, to review the overall progress of the second installment subject to completion whereby he applovecl release other members of the committee of all codai formalities; he did so atter the Mansoor had informeC [-rim (including peiition"r' Zulfiqat Ali Shallwani and

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Ahmed Rajput) that the hardware and software equipment had been supplied and satisfactorily installed and wele operating. It is true that there are Section 161 Cr.P.C. statements on record from other directors of the Information Deparlment stating that little work had been done but in all faimess we consider that it was not neaessary for the Secretary to personally check that the works had been carried out when he was assured by the senior members of the committee that it had been done. The persons working under him and 'a who he relied on were senioL officers whom he had no reason to doubt and it was for them to checl< that the work had been satisfactorily completed as it was they who had assured him in the meeting that the work had been satisfactorily carried out. His role as Secretary was not to micro manage affairs. As such, we consider that the case of petitioner Noor Muhammad Leghari is a case of turlher inquiry vis-d-vis his criminality. As mentioned above we have also prirna facie found malafide on the part of the I.O. in respect of the petitioner and as such his pre-arrest bail is confirmed on the same terms and conditions subject to his furnishing an additional surety of Rs.800,000.00 (Rupees Eight Hundred Thousand) and PR bond in the like amount to the satisfaction of the Nazir of this Court.

13.So far as case of accused/petitioner Zulfiqar Ali Shallwani is concemed in paragraph 9 ofthe Reference specific role has been assigned to + him. Inter alia, allegation against him is that he being Director General (Public Relations), Infolmation and Archives Departments/Chairman, CSC in connivance with the other members of the committee has willfully qualified M/s Prime Trading for the project and played crucial role. Role of petitioner Mansoor Ahn.red Rajput is specified in paragraph 10 of the Reference Prima facie, both ale ilvolvcd iu ihe scam since inception and responsible for payments to M/s Prime Trading by deliberately and illegally misrepresenting as to the status of completion of the project' The documents/evidence coliected by the NAB so far amply shows that it was the Procuring Agency i.e. Information and Archives Department which prepared PC-I of the scheme, advertisement, EOI documents on its own. Formation of CSC is defined in Rule 67 of Sindh Public Proculement Rules, 2010. Rule 67(3)(a) of the Procurement Rules,2010 provides that nominee of the Planning and Development Department not below the rank of BS-18 shall be one of the members of the CSC while from the 161 Cr.P.C. statement of Farzana Shahani, Chief (S&T) Pianning and Development Department, it appears that in terms of letter dated 03.8.2012 of the Procuring Agency she was nominated to attend the rneeting scheduled on 08.8.2012, when Request for Proposals (RFP) was issued likewise the case of PW Mumtaz Ali. This reflects that the criterion for shortlisting was prepared by the Procuring

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Agency in sheer violation of the Rules in vogue. Thus, we find the arguments ofpick and choose advanced by the learned counsel to be without merit.

14.From the record, it appears that IWs prime Traders was declared successful despite deliberate miscalculation in their financial bid with respect to GST and not having Saies Tax Registration Number. It is also worthwhile to mention here that the contract was awarded to M/s prime Trading on 19.10.2012 when it did not even have a bank account. It opened bank account

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on 16.11.2012- Fufiher, statements of prosecution witnesses also reveal that. M/s Prime Trading did not submit any completion certifrcates pertaining to the projects undertaken for offshore and local clients in the past; and no resulnes were furnished by the said firm to establish the claim of 52 employees. For the project, two firms Mis prime Trading and M/s Sistech were declared technically qualified while subsequent evaluation resulted in Prime Trading be declared as the lowesi bidder of the two. Despite the fact that M/s Sistech System was also shorted listed but lost to iWs prime Trading, yet the latter illegalty, under the nose of petitioner Zulfiqar Ali Shallwani and in connivarce with petitioner Mansoor Ahmed Rajput and , other officials/officers, sublet nearly ali the contract to former firm.

15.The above few instances coupled with the admission of proprietor of said firm Aijaz Ahmed, in his plea bargain application show that the prima facie the said two petitioners deliberately failed to check and verify the documents submitted by the bidder declared successful.

16.At this stage \4,e may refer to Rule 30(1) of the procurement Rules of 2010, which clearly provides that "the procuring agency shall disqualify a supplier, consultant or contractor, whether already pre-qualified or not, if it finds at any time, that the information submitted by him concerning his qualification and professional, technical, financial, Iegal or managerial competence as supplier, consultant or contractor, was false and materially inaccurate or incomplete." However, the Procuring Agency i.e. Information and Archives Department, Govemment of Sindh, of which petitioner Ztlfiqar Ali Shallwani was Director General/Chairman, CSC and Mansoor Ahmed Rajput. Project coordinator/Director Admin and Accounts/Secretary of cSC, prima facie, acted in connivalce and misused their authority in awarding contract to M/s Prirne Trading. It is also pertinent to mention here that accused Aijaz Ahmed, Proprietor of Mis prime Trading had approached the NAB for plea bargain but later on became fugitive.

17.Prima facie, sr.rf'ficient material is available on record to show that petitioners Zdfiqar Ali shallwa'i, the then Director General (public

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Admin & Accounts/Secretary, CSC. misused their authority causing loss to the exchequer. Accordingly, CP No.D-8332 of 2017 and CP No.D-8313 of 2017 are hereby dismissed.

18.Before parting with this order we have noticed that the practice of changing Secretaries both at Provincial and Federal levels after a short period of time for no apparent reason gives a greater chance for such scams as this to

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flourish as there is no one Secretary staft to finish of such projects. Jf -from this had been the case then there was a greater chance that such Secretary wouid have picked up the illegalities in this case afld stopped the scam. In this case, during a shorl period ofabout one year when the project was being discussdd, documents checked and verified, contract awarded and payments

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made therelwere three diffelent Secretaries over three different crucial time periods of the project and as such it was difficult for them to pick up any illegality which had taken place and were often kept in the dark over the award of contracts and when payments had to be properly made as they were Ieft to rely on their senior albeit subordinate officers.who were a part of the scam. Thus frequent movements of secretaries between departments should be discouraged and only done on account of strong reasons recorded in writing especially when important projects are midway through which the incoming Secretary will have no background knowledge of. This stance would be iu consonance witli the Honourable Supreme Court's decision in the case of Ms. Anita Turab v. Federarion of pal<istan (pLD 2013 SC 195).

Needless to say that the observations made in this order are tentative in nature and shall not prejudice the case ofeither during trial Ju

.#n,"ut,o Karachi, dated the 10tr'April,2018