Mansoor Ahmed Rajput (Petitioner) VS D.G NAB and Ors (Respondent)

3gz ITq TI{E HIGH COURT OF SII{DII.

I{AI?ACI.II

Before Mr Justrce Ahmecl Alr ful Sharit]r NIr. .Jnstrce Moh:rmrnad [ianm liirtrn .Agh.L Petition No. and natne of rt etiti oner aLotzrl tuith coutse!,

1.C,P No D-1955 of 2017 Shar=jeel Inam Nfenrorr V Chairman NAB & arrother.

Sharjeel Inam Memon S/o Inarn_r-t1_Hac1 (petitroner No 1), Lhrough Ivl/s Aanur Raza Naclvr, Shahat SzrrkL & Afaci Ahmecl, Advocates

2.C.P. No. D-3397 oi 2Oi5 Ztrlliqar Ah Shallwani V The Nt\B through rts Charrman Zlilfiqar Ah Shallr,vanr S/o prr Mnhammerd Shallwanr lPet ltrotrer No ,rl tl-rrourgii Mr. Aermir Raza Naqvt, Aclvocate 3 C P. No. D-3 133 of 2016 & D_7907 of tO15 N{ansoor Ahmec{ Rajput V Drrector General NAB & anotlrer AL-.^d RaJpr.rr S/o Ghr-rlam Mr-rh;Lrnmac{ Rajput lj.]1.:"o.

(Petrtroner No.3) through Mr Zubair Ahrnecl Rajpr-rt, Aclvocirte.

+ C-'P. I{o D-3 151of 20 16 Cr D 3958 of 20.[5 l,lull.rmrnad l'onsr-rf Kaboro V Drrector General (Sincll.r)-l\lAB + anolher

l{uhammacl Yor-Lsuf I(aboro S/o Farteh Mnhammacl l{aboro (Petrtioner No..1.f 'Through N{r Wasrm Al-rrned Kehar Aclvocatc, 5 (j P No D-5378 of 2016 Sarang Latrf V Fecleratron of Patrst:tr-r & rr thers.

Sarang L.rtrf S/o Ameer Bux Chancho (petrtrorrer No 5J .- thror-rgh NIr. Nlanzoot- Hussarn Khoso. Arlr..rrc.rlr- rr C P. No D-5377 ol 20 16 Altaf Hussarn Nlemon V FederalLon Pakrstern thror-r.qh secretarv Nltnstrv ot. Intenor. it u tit els Altaf Hussain Nfemon S/o Muhammad Ramzan (Petltiorler No.O).

through NIr. Manzoor Hr-rssatn Khoso. Aclvttcate,

7.C P. No D 5668 ot 2016 hram Akbrrr 3r others V NAB tirrough rts C'harrmart ct others 1 - L-ram Akbau' S/o Chulauu Akb.rr (petitroner No.7), 2 , Rtaz IVIr-rntr S/o F.lkhar fulrrnir (Petitrouer No 8), . VIt-tLrirmmar-l Hanrl- S/r; N{uhamn-racl Ba,-;hu- lpelrtroner No.9) 4 , Asrm Arnrr Khan Srl<ar-rcla.r S/o Yaqoob I{han Senr,.lr (Peritroner No 10), [.hror-rgir M/s Azhar Srcldiclr_n. Snpj B.lsool S rvT lcllr.,i..i l in Azard,,\clvocates, t"

i - -, - !! i-ri4ryi!rl!r!r\r14r!4.r-!+4r1r€!flrffii{aGt zq3 B. C.P. No. D-5052 of 2O16 Syed Masooc? Hashrni. V= The Chariman NAB & another.

S_ved Masood Hasl-rrrrr S/o Sved Haseen I{ashrrrr (petrtroner No i 1).

through Syed Marhmood Alnm Rizvr and l(hahd Javed Khal, Acivocates.

9.C.P. No D-3 i 57 of 2076 Gulzar Ali V The State & areother Gtrlzar Ah S/o Muhammacl Ali (petitioner No.12) througll NI/s. Ra.la Mrr Muhammacl ar-rcl Nllrharunrilcl Mansoor Mrr, Advocates.

10.C.P. flo. D-5951 of 201S Salman IVlarnsoor & arother V The State & ar-rother *Salman fulansoor S/o Mran Chahb Mansoo::

{petrtroner No. L3) through N{/s Ra3a N,{rr t\Iuhar-nmad and Nluhan.rn-racl Nlansoor lv'ltr, Aclvocates.

11.C.P. No. D-5379 of 2016 Uma- Shahztr_d Iihan iV Federatron Pakistar-r through Secretarv IVhnrstrv of lntenor gr others Umar Shalezad Khan S/o Naclir Khan (petitroner No.14) thror-rgh NIr. Nlanzoor Hussain Khoso, Aclr,ocate t2 C P. I\io D-5393 of 2076 Sveci Nnveecl V The lltate it another Syed Naveecl S/o S1,ecl MaSeecl (Petrtioner lJo l5) thror-rgh M/ s. Mr Humr-rl Zr_rbecir , Aclvocate.

Counsel for the Re spondents,

Mr. Nlohmmed A1taf, Special Prosecr,t[or, NAB Dates of Heanng: 23-08-2017. 12 0\) ',o t7, I '), o'r 'l (-) l?, 1L-Og-2017, 05- l0-2017, 09- IO-2017, t1-I0-2017, 1 B- 1 0-20 17 ancl 23- 10-

Date of Order: 25-14-2017

ARDER

Mohammed Karim Khan Aqha, J Throrrgh these petrtrons, (.he above nameci petltroners were grzu'Lted ad rntenm ple arrest barl by thrs cor-rrt vide vartoLrs orders tn conneclion rvrth tnqurnes / investigations belng conclucted itgr1l1'rst them by the Natror-r.r-l Accountability Burealr (NAB) rir rt-'lar [rorL to acts of corruptlon falLng wrthin the prrn'rerr ol tjrr I'ialrrrrral Accountabihty Ordrn:tnce 1999 (NAO) rvhrc.h le:Lr,i trr l\,,\B irlLng Reference No.SO/ 16 State v Sharjeel Inam iYlemon a-nd t*b

l 2q\ others on 28-O9-2O L6 against the petitrr;ners ll1 conr]ectrorr -wtth a scam by offrcrals of the Inforrnatron ancl Archives Department Gor..ernrnent of Srnclh anci var.roLrs aclvertisrng eigencies r,vhereby the aclverttsrng agenctes rvere appointecl il1egally and in violatron of the relevant rules throngh "r t mtst-lse of authority/ farlure to exerclse .lLtthorttt, by tl-re Goventment officrals lvho malafide, cleirberatel-v attl connlvarce rvrth each other.awarded corttrrrcLs to aciverlrsrng agencies at exorbl[ant rates lvhrch unduly benefitecl the .rdvertising agenctes wLro are benefrcrarres tn thls case rvho acted rn connlvance rvith the government ,;fJl,.t,,l. u h rclr lqarl Lo a colossal loss of approsrmately RS S Billion to the state e-tchequer hence the .tforesarci reference was llled agarnst the petttroners by NAB nncler the NAO on the grouncls of I corruptlon and corrupt practrces. By this common orc.ler ure, propose to clrspose of lhe aforesalci petltlons for the gralt of pre arrest batl.

2.The facts of the case as per Reference No.5O/20 1o are that an rnvestigation w.as conciuctecl regar.chng corruptron uncl corrupt practices ln the advertrsemenI of alvarerlL.ss cafitpalgns carriecl out b1f the Srndh Informatir.rD Dcpilrfrnerlt_, tn electronrc medla r.e. TV Channeis & FNit Channels, rn respect of the perrocL from July 2OLS to Juue 2O1S. whLch revealecl that an amollnl of Rs. 5,766,479,766/- $/as p.rlcl , durtng the sard perrod by the satd clepartment to the, adverttsrng agencles for awareness campaigns as per the cletails tliat lbllows:-

Sr. # Name of Agency AmoLrnt Paicl (Rs ) 1 M1s, Evernew Conce pts Pvt. Ltcl 4,I S+,585 t.rTrr a KI s Orlent Communrcatron Pvt Ltcl 320.06',1., .J-l a M s Aclarts Karachr Pvt. Ltd 317.33E,,q70 4 M /s. Connect IVlarketrng Pr,,t. Ltc1. 310.+74, I32 5 M7 s Value Added Marketrng Service 205.827,587 Pvt. Ltcl.

6 M,/s. Xnine Comnrun rc rrtro ns PvL 37+.54b.73c-, Ltcl 7 fuI S Ins nc Adverlrsement Pvt,Ltd, S.l.o+ 3,oo8 l

TOTAL 5,766,479,766

V-L

4 v-9t

3.The investigation further reveals that pre-qualification of aclvertising agencies r,vas concluctecl in violqtion of Sindh Public Procurement Rules, 2O10 (the Rules). The accused No.1 Sharjeei Inam Memon, Ex-Minister Information, cluiiing his tenure from 31.O5,2O13 to 22,07.2OL5 iilegal1y approvecl releasing of oflicia.l advertisement in electronic media for + awareness campaigns through these so called pre-qualifiecl i:ll advertising agencies without due competition between these advertising agencies and contracts / release orders . were issued to favorite advertising agencies at exortritant rates even without ctnfirming the. market rates in respect of per minutes cost of FM & TV Chartnetrs as. req.uired in the Rtrles. Fnrther, by misusing his ar-rthority, in some instalces, the Accusecl No.1 approved directly the media plan submitted by the adverLising agencies lvhich was sr-lbseqllently processed thror-rgh the Accused No.2 to 7 who are officers of Sinclh Information Department, a clear violation of the Rr.r1es.

4, The invesligation a.lso revea,ls that advertising agencies suppressecl the invoices issued by the media channels which irad showed the actual amounts, witl. ulterior niotiveS dnel ma-lafide intention in connivance with the officials, of Siadh Information Department ancl claimed much higher amollnts as compaied to the amournts of iovoices issued by the media channels. Whereas, as per well settied practice, advertising agencies are entitled to get only 157o agenry commisdion agail-]st the tota-[ biJI / invoice received trom ttre mebin channel. i

5.it is also apparent from the investigation that Accused No.2 Zulfiqar Aii Slrallwani was posteel . as Secretary information & Archives Department Government ot l11af. from 19.09.2O13 to 31.07.2015. He has, in his aforesaid capacity, mlsused his authori[r in Pre-qualification I selection process of aclvertising agencies by violaling the Rr,rles. Furrther, he deliberateiy and rvith mala-ticle intention appointecl junior officers at the post of Director Advertisement . .Ft

zq6 ry of Information Department who actecl on his illegal orclers and with their active conniva-nce with each o.ther he got processecl for approval advertisement / awareness campaign in electronic media i.e. TV & Radio which were carried ou.t through so-caiied pre-qualified adverLising agencies . xt exorbitant rates without cornpetition and ascertaining market rates. Due to his misuse of a.uthority nhtional exchequer has suffered huge ioss againsL payments of bills on exorbitant ancl unjLlsLified rates.

6.As per investigati.on. Accused No-3 Ms, furita Ealo-cii i (Absconding and now proclaimed offender), was posted as I Deputy Director, Information in BPS-18 from 12.09..2012 to 31.12.2013 and from 16.Ol.2Ol4 to tZ"OZ,.ZOt+. Tlre

I

I

I

accused No.4 Mansoor: Ahmed Rqjput lvas. posted,. as. Deputy Director, Inforrr'ration in BPS-I8 frorn tr8.O2.2014 to

I

18.12.2014. Further, the Aceused No.S MuhanrLnad Yousr-if I I(aboro was posted as Depufy Director Jnformation in BPS-18 from 3i.12,2013 to 16.01.20,14 ard 18.12.2O:L4 to 17.12.2AI5. T1-re Accusecl No.3 to 5 clr-rring the tenure of lheir respective periods, were allowed to work as Director Information (Advertiserneot) by Accused No.2, Zulliqar Ali Sha-llwani. They are founcl to have misused ti-reir authorilry as they iilegally issued release orders for. media campaigns at exorbitant rates without following procurement rules and due competition between the so-ca-lled pre-qualified adverlising agencies alcl lvithout ascertaining the market rates of each FM Radio & TV channel and processed the bills for paymer'rt from A.G Sindh ofllce at exorbitant rates in counivance wilh Accusecl No.1 a:ncl 2 which resttlted irtto hea\ry ioss to the national excheqLler.

7 . The investigation also reveals that Accused No'6 Sa-rang Latif Chandio was posled as Information Officer (Billing) .in Advertisement Section, Sindh information Depa:-tment in BPS-17 fron' tr7.12.2OL2 to 16.09.2014. During this period ' he processed bilXs for rnedia campaigns at exorbitant rates

LO

>q\ alcl lvitirout \^/ithout verification of transct'ission certificates Raclio & TV channel ascertaining the market rates of each FM AG Sindh Office' He and processed, the bills' for payment frorn channei and got dicl not obtain the invoices of the media approvai of over invoiced bogus bills in corurivance with tris which resultecl into superior oflicers /' accused for payrnent hr-rge loss to national exchequer' Accused No'7 Atlaf

8.The investigation also reveals that (General) in BPS-17 since Hussain Memon is Section Ofiicer cornmand of accused No'2 22.10.2011. He was under direct signed the bills for rneclia' and during the relevant period he He usecl to sign on the bills ."r.r**^" J DDO on his behalf in violation of rules' He for payment without verilieation and didnrrtcheckthebi}lscontainingexorbitantamountswhichto for payment which resulted into huge loss were approvecl national exchecluer' No'B Inam Akbar

9.Per the investi'gatiorl report Accused wasownerofadvertisingagencyM/s.Evernewpolcentsel,l been founcl overall Ltd (Evernew) and as such he has said advertising agency' beneficiary and key play'er of the :

of the company having He was tire Director/ share holder ' Therea-fter on o4'05'2ot3' ' as on 17 'O2 '2012' 2la,O7lshares in the malafide intention shown the accused Inarn Akbar with a't-rd made ;;J;;" -.ansferred his shares to his emptovees i br-rt actually he rer'nained them clirectors and sharehoLders' real beneficiary as he himselt" operated two the owner / accounts of the company i'e' AccoLlnt No'QO242OO22'U:-9-3 ': 1 DH^A 'Y' B'lock Branch Lahore' 'fhe :- maintained at Silk Banlc Infiorr'nation Depal tm€nt lxas i amourrt received from Sindh I to his personal as r'vell as his other been founcl transt'erred with media accounts ' He signed agreements companies' aclvertisements in meclia channels regarding reiease of namely M/s' Space ttutt P]t' chalnels througkr his compaly : of Sinctl-r lnformation Ltd. regarding advertisement Moreover' period uncler'lnvestigation' Departmenl c1r-rring the of the illegal proceects of he is the major benellciary l4 '1,j

;. 2 q8

Rs.2,223,\98,A92/- through excessive biiling showing exorbitant rates of rnedia channels irr conhivance with management, shareholclers of Evernew and officers of Information Depaftment.

10.The investigation further reveals.that as per record ol SECP, the Accused No.9 Riaz Munir is CEO of Everuew r,vhereas Aceused No,1O Fazal Mahraood (now deceased) was its Director who have actively connived lvith the Accusecl No.8 and as such are reSponsible for causing loss to national exchequer by excessive biliing showing exorbitant rates of meclia chalnels. They alongwith Acctrsed No.8, i 1 and 12 are beneficiary of illegal, overpriced and exortitantly invoiced l

I

receipts.

I

1 1. The investigation report also shows that Accused No: 1'1 Muharnrnad Hanif was Company Secreta4r arld Accused No,12 Asim Arnir Khan Sikandar was Senior Executlive i Director of Everneg/- Both the accuseci jointly operatecl the bank accounts of the company' Further, they actively connived w'.itl-r Accused No.8, 9 and 10 as such aided ancl abetted as well as assisted, them in transl-ernng the crim'e proceecls. Both accused are equally responsible for causing loss to the national exchequer' They alongwith accusecl No'8' , 9 ancl 1O are beneliciary of illegal, overprieed ancl exorbitantly invoiceci receipts.

12.. The investigation further reveals that Acctlsecl No' 13 Syed Masood Hashmi is CtrO/Director/ overa-ll owner of the advertising agency M/ s.' Orient Communication Pvt' Ltd (Orient). which received Rs.32O Million from sindh Information Departrnent against release of actvertisement .

campaigns on Electronic Medla (FM /Tv) He obtainpcl " Lxnollr']t invoices on exorbitant rates from the media arLcl sarne wasclaimedfromlheSindhlnformaLionDepartment'bllthe got special discounts l credit notes in addition lo I5o4 agenc-y

commission from the media and as such rvas major k, :i-.1:i . ..:!J-

zqq into toss to the t rates which resuttecl beneficiarY of eiorbitan Rs 75'830'568/ - lo ttr e tLtne of national exchequer Aii Ac cusecl No t4 Guizar report of 11 As p er invesfigation r are both Directors Saiman Mansoo ancl Accr-rsecl No.15 Karachi Pvt. Ltd. (Adart) wllich M/s' Adart advertlsrn sagencY from Sinclh Inlorrnatron Million has received Rs'317 sernent camPaigns orl ainst release of aclvertr Departmertt, ag No.14 usecl'to oPerate (FM)- The Accused Electronic Media ald its major shareholder' e comPani the account of th Dir ector connived with the ed No'.15 being the national r,vhereas the Accus 1n loss to hich resulted other accused w 9,596,413 | - by submittrng tune of Rs'22 also bitled '' exchequer to the certificates ancl bogus bi1ls with fake farrsmission / exorbitantlY ' "*""="iu.ly on rePort that Accused fro'm investigati aricl

14.lt also transPires of DaiiY Milan' is ProPrietor No.16 Umar Shahzad ol Media Po wer Link, who earried Accused No ' 1 7 is ProPrietor Meclia.on behalf of in Electron ic out actvertisem ent car,npaigns amounts ol and as su chr eceived No' 14 and 15 in thetr accusecl resPeetiveiy arrd Rs'121'955'6321' connived with Rs,124,031'247 / 14 ' TheY have Accr'rsed No fake ancl forged accounts frorn of anc1. 15 in subrnissron accuseci No ' 14 certificates a:rd also billed transmission and invoices and as such theY are joinilY orbitantlY ancl excesslvely/ex accused Per

SO11S

wl th the other severalIY liable of categorles therefore con cerns two

15.This refelence €rl1 ment officials who Gov there are the auttrority (Sharjeel pefso13,s' F irstlY therr I failecl to exercise Balbch aliegedlY misused Ms Anitzr Zi"ll{lkar Ali Shallwani' Inar,n Mernon, offencier Mansoor Ahnred roclainrecl Ctrandio and absconding and P Kaboro' Sarang Ladf RajPut, Muharnrned Y ousal secondlY there ale the Hussain Memon ) ancl ves who v'/ere the AitaI representatl agencies art d their he adve:tising connivance 9,f and malafide oI the cielib erate to e::ercise therr bene{iciaries rnisused/failed officials who W,.

Goverrlrnent

e.cc

authority (representalives ol Evernew being Inam Akbar, Riaz Munir, Fazal Mahmood (deceased), Muhammed Hanlt, As.im Ahmed Khan Sikancler; Orient headed by Masood Has'rmi; representatives of ,{dart being Culzar Ali anct Salmari Mansoor; propdetor of Darly Mi1an Umar Shehzad and proprietor . of M/ s Media Power Link (Meclia Porver) S-ved Naveed).

We will lirstly deal with the case of the Government officials.

16.Turning to the case of petitioner No.I SharJeel In*nt Memon who was the Minister of Information and Archives at the tlme of the alleged offense" Learnecl iounseli loi petitioner No. 1 inihatly were of the view tfiat the Rules did not apply in this case and even if they dicl they had been co'rnpliecl with iater on however in their arguments they conceded that lhe Ruies clid apply; tJrat petitioner No' 1 was completel-y iunocent of any wrong doing ancl had comptiecl r'vith all reievant rules ancl regulations in engaging t1-re :rrlvert'islng agencies, agreeing their fees and sanctioning their fees; that the Government of Sindh (GOS) hacl to engage an advertising agency in orcler to get its adverts aired on the relevant T'V ancl raclio chanuels ancl through an advertisirig agency the GOS lvas able to achieve the best rates and in this respect' he compared the case with one of going to a travei agency in

I

orcler to book an air ticket rather than going straigl-tt to art airline as the travel agency clue to its own r:elationships with

I

the airlines was able to secllre a lower priced ticket; that each channel has its owr: rates in tlris unregulated industry and that NAB has not been able to show that such aclverts 'qrere available at a Lesser rate'; there was no allegation ol any kickback or financial gain; that he did not approve the med'ia plan; that advertisemenls lvere macle ancl pre quralification took place before the concelned advertising agency was appointecl which was done in a transparent marneri that he acted under the advice of the Secretary Inlbrrnartion' ancl

IO

zs\ ancl that the NAB had acted malaficle Archives(petitioirer No'2) docttments which exonerated hirn and by concealing certain to- petitioner No' 1 was entitled thus for all the above reasons of hi" "ot't<:'ltions he placecl pre arrest Lrail' tn support Khan Niazl aurthorities aUauf t eliance on the followrng lzlz NAB' Islamabad (PLD V. The State thlough "n"t'rn""' M' Udeshi V' The State

(2005 SCME

2003 SC 668), Ramesh of Pakistan (PI-D 200'q

SC)

648), Mansur-u1-I{aq V' Govt' Khaa Asfandyar Wali & others V' Federatlon ' Q-f Cabiaet Division, Islamabad & others Pakistan through V' The State & n*of S"fn"h l{adri (PLD 2OO1 SC 607)'' state {2) zzzl' w"i" Meah V' others (20m MLD :n" (Pak') I57), Tariq

SC'1]

patrtstan (PLD 1957 The State Bank of YLR V' Ctt"f'*"rl NAE 6s 2 others t2OO5 Saeed & another througb

445)(Lahore)' Sindh High Corrtt Bar Association f Federatlon of Pakistan through Secretary u 'ootl'"n others (PLD 2009 of La* Br' justice and Secretary, Ministri (2O08 *' Ghauri & others SC 789), The State '' '*."'& others V' Central Bureau Sanjay Chandra SCMR 1118)' sved * ;;;"t s \2ar2 SCMR 17?2) arrcl of lavestigati"t Aiehcy Shah &' ot*'" V' Federal Investigation Mushahid 12i8)' & others (2017 SCIV{R

etitioaer No'2 Zulfiqar Ali for P t7. Learned counsel was secJetary' at the time o f the offense Shallwani who subnritted tha-t il]e and Archives DePa rtment Information been done and that every thing had Rules had been foltrowed any and that he had not committecl in a transParent manner tlre rates which the no ev"idence that illegalitY There was were exorbitant; that agencies ehar ged selected advertising was no cor[petitl ve, ancl thAt there was ttre biclding process ofticiais- of his certa-1 n senior qLle stion of hi:rn sidelining the bI ue eyed troYs so lhat' dep a-rtment with his "o """11gd" reasons he That fo r all the above bre imPlemented' SCATI-]. could ln r-rpPort'of his cofltentiofi s arrest bail' s was e ntitled to Pre orities cited bY Petitiotrer or'the same auth l,re pla cecl reliance No.1.

ll Z|;L for petitionel No'3 Mansoor Ahmed' 18. Lear[ed counsel RaJput who at the tlme of the offense was Deputy submittecl that he Director InfQrmation [Advertisement] c-lireetor Irrformation btLt was allowed by Lhe rvas clepury* as a Director who was aware that he ws's Secretary to work allegationd again st hirn were' cnly at deputy level; that the all the relevant Rurlds had been only genelal in nature; ttrat wetc the ietters which he had sent to the advertisers followed;

competerit authority who he under tlT e instructions of the lvas the Minister Information and Archives confirmed dicl not No 1 Sharj'eel lnam Memon) ; although he (petitioner on the clocurments lre only wrote "fo1-tl'rc deny his signature he the oflice of Director was vacalt (although Director since was aviable in the MinistrT) knew Directo r Zeeaat Jehan on rnost deputy director and to sign I ancl he was the sen'ior a routine franner; that he hael ntt wcrs behalf of the ciirector agencies ancl he has not *io:

he 3" nexus with the advertising reasons was such for all the above fina-ncial gain and as bai1. in support of his co^tentions lee entitied to pre arrest of o'-' Niu"' Ahmed Ansari v' Federatlon placed relian"t ri}iazl v' Stste (2016 PCr'IJ 761)' Abdul Aziz l{han Pakistan SC 668)' and Hasarr Jameel Ansari v' Natlonal (PLD 2Oo3 Bureau tNAB) (2012 YLR 2809)' Accountability Nrl-4 MoharBmed Leatned counsel' for petitioner No' tirne of the offense was Deguty Yousuf Kaboro *n";;

the (Advertisement) macle similar Director lnformatiorr No'3 Mansoor Ahmed Rajput butt submissions to petlti"ner any biils ancl'-that submitted that he did not sign aclditionally pre biils were lake and as such his his signature on sucl'r confirmed' arrest bail strould be i

who for petitioner No'S Sarang Latif 20. Learned counsel officer (billing) vzas Information at the time of ttr" offense subrnitted ttia't the . '

er"trivuu DePartment Information ana ttre bills in ** h'e had processed petitioner r'vas innocent "U ll.,-

good faith and as sr-rcir his pre arrest bail shoutd be confirmed.

21.Learned counsel for petitioner No'6 Altaf Hussain- Mernon who at the time of the offense was Section officer that

(G)Information and Archives Departpent submitted he was completely innoeent; that he had not signecl aly bills or sanctioned any payment; had not received any personal benefit ancl he had. nothing to cto with the advertising pre arrest- agencies and as such he lvas entitled to have his bail confirmdd. I

t"

wele 'Iurning to the case of the advertising agencies who the beneficiaries of the misuse of/failure to exercise .l i i

caused a authoritY bY the Government officials which colossal lossto tlre exchequer whose case was dealt with above.

'i l

22.Learned counsel for petitlorrer No'7 kam Akb*r who l

I

attl-ietimeoftheoffenseallegedlyhadnothingtodowith Evernewsr-rbmittedthathewascornpletelyinnocentofarry ' i to hear his case d-s wrong doing; that NAB had no jurisdiction I 'Llnder S'18 NAO had not been the procedural forr'nafities l

was made by :l correctly carried out- Narnely that no complaint I arl appropriate Govexnment and r'ror was ' a complaint received it did not received. Eveu if a comPlaint had beerr instead relatedl relate to any offense under the N'qO and -to Court concernlng non compliarce with orders of the Supreme rurtres; that I{AE haci no persons posted irI violatioft of services I been'filed arrd the to arrest hirn once the reference had

I

I

power lsarrarts against him;

I

trial court could not issue non lrailafrle scam took place and that he had left Evernew before the I

lr+i the scam; that there waP lol' therefore had nothing to do rvith 15e/o or any other rate for uniform policy for price fixation at arlvertising and that this was a completely unregulated ,i

ald as suctr there was no question of his company" industry exorbitant rates; that he by filing a petition before charging

as9 I ti i ,i

the Lahore High Court had actually sought lhat Federal and-- ' provincial Governments ensurecL uniformity/ lransparency it'r pricing ald as such was trying to rernedy the situation; that i[ was incorrect to suggest that advertising companies were only paid on the basis of the length of the adveit and how long it ral for since the advertising companies had to also be compensated for the creative design which they'pr;t into the^ adverts which fully jtistiliecl Evernew's rates c'f billitrg; that the investigation was completed ard he was no longer required arly more artd as such for all the above reasons his prq. arrest bail shoulcl be confirmed' In support of his contentions he placed reuance on the Media Commisslon Report datdd 1o-o6-2o1Q Maqbool Ahmed Shaikh v The State (2014 YLR 2544) Anwar Ahmed Khan V State (i996 SCMR 24) Dr.Arsalan Iftikhar V Malik Riaz Hussain

(PLD

(PLD

2012 SC 9O3) Shoaib'Warsi V Federation of Pakista'a i 2017 Sindh 243), Makhdoom Javed flashmi V' The State

I

i

I

Jahangir ilahore DBI (2003 P Cr.L.J' 266), Muhammad Badar V. The State & others [FB) (PLD 2003 sc s2si, Muzammil Nlazi V. The State {DB} (PLD 2003'Karacl'ri

I

Ilaji Ghulam Ali V. The State (SC'FB) (2003 SCMR 597)' Khan Haroon Resikh V' The State & 2 others IDB)

(PLD

V" Asif Baig 2OO3 Lahore 517), Chairman NAB, Islamabad Muhammad - Muhammad & others (SC.DB) (2004 SCMR 91)' (I{arachi Shafi Nirban V. National Accountability Bureau i Baloch V' DBI (2007 P.Cr.L.J. l2B2), M:uzaftat Ayalz Abid

(PLD 2007

Regional National Accouotability Bureau Sindh Y The $tatc Karachi (DB) 558), Dr' Allah Nauraz A' Qazi '.

DB) (2008

(2008 SCMR 196)' Fazal-e-Hadi V' NAB (Karachi 171), Manzoor Hussain Shahani P.Cr.L.J.

V' NAB (PLD 2QQg '

DB) (2O08

SC 324), Farhad SaJid v' NAB (Pewshawar P.Cr.L.J. 910), Muhammad Tahir Siddiqui & another V' Muhamrnad NAB (SC.FBI (2oo3 SCMR 1085)' Sardar' l.Iaseem V. Judge Accountability court (DBl (PLD 2006 Hassan V' The State Lahore 162), Muhammad Rasheed (PLD 2OO8 Karachi (DB) 146)' Arif Sharif V' Chalrrnan NAB Iqbal Solangi V' (sc.FB) (2004 SCMR 1805)' Muhammad vl ,rl. :

t4 esf

The state (DB) (PLD 20O4 Karachi 377)' F arrukh Sayyar

MLD 519)'

Ilhan V. The State & another (Lahore DBI (2005

(SC'FB! (2005

Asif Ali Zatdai V. Federation of Pakistan l SCMR 422), Muharnmad Amin Qureshi & another V' The Raza V' State {Karachi DB) (2007 P'Cr'L'J' 105.)' Hassan Abdul Aziz lih*n' :'

The State [Karachi DB] (MLD 2OO3 729)' The State V' Haji Niazi V. The State (FB) (PLD 2OO3 SC 66)' Soomro & Kabeer Khan (FB) (PLD 2005 SC 364); Saeedullah 660i' Ayaz another V' The State (SC DB) (2004 SCMR YounusV.TheState(KarachiDB)(2006MLD452)'Raja MuhammadZaratKhanV.TheState(FLD2o07.I{arachi The State & othiiis: " 27), Syed Ali Nawaz Shah & others V' gFB) (PLD 2003 SC 837i, Wakeeluddin & others V' The i

Abdul Q*dir State (Karachi DB) (2OO7 P 'C:-'L'J 1515)'

DB) (2008 MLD 257)'

Tavrakkal V' Chairman NAB (Karachi I 2009 SD 459)' Dr' Fazal.e-Hadi V. NAB (Karachi DE) (NLR .AjlahNawazA.QaziV'TheState(SC}(NLR2008CrL}526),

(PLD 20OB SC 32'+)'

Manzoor Hussain Shahani V' NAB v. NAB lPeshawar DB) (2008

PCRU 910)'

.Farhad Sajid State (PLD 2008 Muhammad Rasheed Hassan V- The .l

V' NAB (2008

Karac}ii (DB) 146), Anwarul Llaq Qureshi rl 1i35), Gul Hassan Saand V' The State through NAB

SCMR

Ahmed Hashmi--V-' (PLD 2OO8 Karachi (DB) 234}' Farooq NAE (Sindh) (Karachi DB) (2oo8 MLD 14i9)' Muhammad

(PLD 2008 SC 645)'

Nadeem Anwar 6o another V' NAB RizwanAhmedv.NAB(PLD2008Lalrore381),Fazal.e.Hadi 2OO8 CRu 919)' Msrzoor V. NAB & another .(Karachi) (NLR IlussainShahaniv'NAB(PLJ2oo8SC344),Zakaullah KhansherwaniV'TheState(PLJ2008Lahore.DB..Z76\, (2003 The' State (Lahore DB) Makhdoom Javed Hashmi V' & '' Badar V' The State PCrl) 266\, Muhammad Jahangir and Muzammil Nlazi V' The ' others (FB) (PLD 2003 SC 525)

State (DB) (PLD 2003 Karachi

for p€titioner No'8 Riaz Munir t'rho 23. Leaaned counsel was CEO of Evernew subrritted i

at the time of the of,fense that tlj*e of any wrong doing;

that he was completely innoceret

l5

2E(

have been filecl reference *o".roi sttstainable as lt shouid tha't he was against the company and not the Chief Executive; CEO fo r a short a ruinority shareholcler; that he rvas oaly the companYis bank perioci; that he h.ad no power to operate accoLutsortosigncheques;hehacInobankqecount into it; that the riialafide such no r,noney haci been transferred in Para 9 of the of the NAB had been shown by the NAB" blame I responsibility / reference w'hereby virtually the whole No 7 (Inam Aktoar) liability hacl been placed on petitioner according to NAB's own reference and he was being J i

reasons; that the NAB shor-lid ' "' needlessiy ropect in for rnalafide haveconstitutedaJlTtoinvestigatethematter;thatNAB the to determine should have appointecl forensic accountants ' of the loss; that this was a case of further precise amount reasons tris pre arrest bail incluiry and that for all the above of his contentions he placed should be confirmed' In sttpport i' reiianceonthe.clefinitionof,iegalentity,',Superintendentof;.'.. V Akhtar llussaitt B'hutta (PLD 1978 SC Police, FiA Lahore (PLD 199i Sc 893)' Dr' Majld 193), Qasim shah v' state Accountability Bureau (PLD 2Ol2 Naeem v. National Shaikh V The State Lahore 293) and Maqlool Ahmed wR2Ot4 2644\.

counsel for petltioner ,No'lO Asim Amir I

24.Learned Senior who at the time of, tbe olfense was I Khan Sikander subrnitted that he was i

Executive Director of Evernew simply a innocent of any wrong doing' He was completely and he hacl been malafidely roPed into t:e'' humble employee his role was simply that of operating the case by the NAB;

company,s a.colujts arrd being a part of ttre manageoaerrt;

rnedia plan; thal 1"

to do with the thalhe haci nolhing him and beneficiary; that there was no roateriatr against not a pre arrest bail shoulci be I

for all the above reasons his he placed reliance on- l

In support of his contentions confirmed.

IIAB (2016 SCMR 154)-

Maqbool Ahmed Lehrl V 4 I

i

I

l6 2 s-1

25.Learned counsel for petitioner No'9 Mohammed Hanif who at the time of the olIense was Company in the Secretary of Evernew submitted that he was sailing Sikander ancl same boat as petitioner No' 10 Asim Amir Khan l aciopted his arguments ancl submittecl that his pre arrest bail I

should also be conlirmed 't

26.Learned counsel for Petitloner No'11 Masood

I

of orient " ilashmi who at the time of the offeose was CEo 'i

submitted that the petrtioner had actecl strictly in accordarce ..i

I

I

is not with the law and market practice; that tlre inclustry to fix the reguiated and. it is up to the agency and the channel I bulk rate for the adverts and that he was entitlecl lo keep any placing the adver-ts.- discount which he acquired on account of andthisbulkdiscountwasexclusivelyhisbenetitwhichdid not have to be passed on to the GOS and in this respect he the Pakistan referred to a letter dated 01-06-2A16 from Broadcasters flssociation; he conced'ed that the petitioner had was a bona fide mistake' a-lso billect for FM radio however this ancl the amount haci been refunded to the GoS ald for alt the"

above reasons he was entitied to pre arrest bail' In acldition to RS he was prepared to place a security amounting 75,830,568 being his share of the liability' No'Is Salman

27.Learned counsel for petltioner was a Director "q(' Mansoor who at the time of the offense only responsible for t, Adart submitted that his company was shareholder and radio adverts; that he was only a minority lhe offense occured and was not a Director at the time when he had been ai;road and rluring most of t-he reference period that he hacl not produced had no involvement in this scam; in ' bogus trans'rnission certilicate as ali6gecl anct aly fake or the genr-rine transrnission certillcates hacl beerr fact -l- deliberatelyconcea]ed,bytheNAB;thatAdarthadnot as they had oniy charged 15o/o charged at alt exorbitarrt rate that it was a ' which they rvere entitled to charge; commission *tl i

sub let the entire contract family company which hacl ?*

zs2 q l1

otheracclrsedUmarSha}rzadeproprietorofDaily.Milan.encl Power and il anY wrong Syed Naveed Proprietor of Media had been done the responsibility liability iay with the doing two sub con[ractors and thus for ail the above reasons his bail slrould be confirmed' l

wo' 12 Gulzar All who

28.Learned counsel for petitioner j of Adart adopted at the time of the otfense was a Director Salman Mansoor' ln the argrlments of petitioner No' 13 I company cor'rld only acldition he submitted that the :"."T:'1 an individual Director irncl thert lhe in the reference artci not v/as aged man of 77 years and for all the above petitioner a1n

reasons his bail should be confirmed' No'14 Umer Shahzad

29.tearned counsel for petitioaer was proprietor of daily Milan who at the time of the offense ' was completely innocent of ar\y subrnitted that he that all his invoices were genuin'e; that S' 161 wrongdoing;

exonerated Him and thtts Statement of Qazi Ahmecl Mateen confirmed his pre arrest bail should be No'15 Syed Naye'pd'

30.Learned counsel for petitioner' of Mectia Power was proprietor who at the time of the offense Submitted.thathewascompietelyintocent;thathehadnot rro PW had biils or invoices; that submitted any fake ancl the S' 161 their 5"161 statement implicatecl him in that he hact Mateen exoneratecl hinr;

statement ol QaziAhrned 'in-ite commission and that as admittecl by NAB taten oniy 39'o the GOS .il who was to blame who chargecl IR it was Ada::t and well above lrre 3Vowhich he hacl charged inflated invoices as such his pre arrest bail shor'rld be confilme'd' Prosecutor for the NAB opposed a1l 31. Learned senior pre arrest barl ald sr'ibinitt€d for the grant of ' the petitions in the had colleetecl more tl:an sufficient material that NAB evidence' :

statements and other documenta:'y shape of S'161 petitioners i

referred to' to show thal a-11 the which he briefly

H

2sY I

t3

were connected to the offense for which they had .been charged and s such their pre a-r-rest bail shoulcl be recallecl.

32.We have heard learned counsel for the parties at great length spread over a number of hearings hnd on request even permitted lhe exceptional step of allowing two colursels to make submissions on behalf of some of the petitioners de.sp'ite this being a bail matter where deep appreciation of the material on reeord is not permitted (for example, Aarnlr Raza Naqvi and Shahab Sarki advocates were both. permitted to argue on behalf of petitioner No.1, Syed Mahmood Alam Rizvi ald Khalid Javed Khan, advocates \ /ere both p€rmitted to argue on behalf of petitioner No.l1 and Azhar Siddiqui anrl Saad Rasool advocates made lengthy^ subrnissions on behalf of petitioner No-7 Inam Akbar, ho,wever aJter t[ey had completed their submissions another counsel Mr. Shabbir Shar advocate attempted to file his valakanama. on behalf.of Mr.lnam Akbar- Since two senior and experienced counsels. for Mr. Inam Akbar had already argued at length and they had concludecl their arguments on the Iast date, keeping in irierv that this 'lvas,. as mentioned above a bail matter where a deep appreciation of the material on record is not to be made i, we declined to take Mr. Shabbir Shah's viakalatnaflla on record and hear arguments from him on behalf of Mr.lnagn. :

Akbar especially as; judged from the conduct of Mr.lnam Akbar who remained absent after bot?r'his counsel were heard on unimpressive medical certificates at d evln when ttris order was announcecl, this appeared to tre a deliberate I delaying tactic only Lo prolong an already long outstanding pre arrest baii matter which being ari extraordinary rellef' ; should be decicied at the earliest r,vithout unnecessary delay'

33.We have also carefully reviewed the material on record' the relevant s[at]'ltory law a-rld the case law cited by the parties, w I

i

I

ti

I

rir"

,"i..,1

26o iJ t9

34.We woulcl also like to make it clear that the findings in this order are only based on a tentative assessment of the material available on record and shall have no beiring on the tria-l which shall be clecicled on merits based on the eviclehte placed before the tnal court.

FINDINGS ON MALAFIDES (Government officials artd "l B encficlaries / advertising companies)

35.It rs now well settlecl lar'v that pre arrest bail is an ex'uraordrnary relief and is only available in cases where there has been malaficle on the part of the complainant or the police. In this regard rel'erence may be made to the case of Rana Mohammed ,A.rshad V Muhammed Refigue (PLD 2009 SC 427) which helcL at P' 431 that the foliowing conditions need to Lre satisfied before pre arrest bail can be granted as set out belolv:

:; r' "9. Even since then, the said interpretation "o *aat] t1t9 'l saicl por,vers so found and the parameters so.prescribed' have been reguiarly ancl repeateclly coming up fot'

'I

scrutiny by tfr-e Superior Courts inclr'rding this Court But ealh iime the matter was re-examined, the sdm'E ;;; ;;t re-affirmed. The said concept as itsame was initizillv stands fr"p""tLa"a; as it developecl ared as the^. ioAay, may be summarizecl for the benefit of us all as uLnder:-- I

is an extraorclinary [a) grant of bail Lrefore arrest . f,;

' 'i"ri"r to be grantecl only in extraorcliirary sitr-rations to Protect innocent persgn3 victimiz-ation through abuse of larv "J"i""t for ulterior motives;

(bl pre-arrest bail is not to be used as a i substitute o, u" *t alternative for Post- arrest bail;

i{rl hail before - arrest can not be grantcd unle-ss '"'It. p"i""t seeking it satisfres^. thc.

condit?ons specified subscction lzl ol ;;;tl.; +97 of code of criminal Procedure -""f"=" 1". he esiablishes the existence -of r"""o""Uf" gror-rncls leading to a belief that h-e agalnst nlm was not gr-rilty of the of[ence alleged gror-rnds and that there r'vere, tn fact' sttfficient -,r-*t.nti.,g further inquiry into his gr-rilt; . l,t .a v,./ _

:i

zct

(d)not just this but in addition thereto, he must also show that his arrest \ as being sought for ulterior motive, particularly .on ln.

the part of the policel to cause irreparabic humiliation to him and to disgrace. n$d dishonor him;

(e)such a petitioner should further establish that he had not done or suffered any act which ir would clisentitle him to a discretionarv relief in ,i . equity e.g. he had no past criminal rer:ord or ilu that he had not been a fugitive at 1aw; and finally that; 'il

(f)in the absence of a reasonable and a justi.tiable .- cause, a person clesiring his admission to bail before arrest, must, ''in the first instance approach the Court of first instant i'e' the Corirl of Session, belore petilioning the High Court for the purpose."(bold added) :r

36.The requirement of malafide in order to clualily lbr prr-r arrest bail has recently been emphasizecl by the Hon'ble Supreme Court in the case of lYlukhtar Ahmad v' The State and others (2016 SCMR 2064, relevant page 2066) as under:- "....... This Court has repeatedly declared that the concession of pre-arrest bail cannot be allowed to an accused person unless the court feels satisfied about seriotrsness of lhe aecused person's assertion regarding his irrtended arrest being actuatid by mala fide on the part of the complainant party or the loca-l Police" f, 37 . In this case petitioner No. 1 Sharjeel Inam Memon (Minister for Infrorration GOS), petitioner No,S Riaz Mnnir' I petitioner No.10, Asim Sikander Khan, petitioner No'9' Mohammecl' Hanif (a11 executives at Evernewi ald pelitioner (both No. 13 Salman Malsoor and petitioner No' 14 Guizar Ali Directors of Aclart) have claimed maialides on the part of the

NAB.

38.Petitioner No. 1 (Sharjeel Inam Memon) claimed that' NAB had deliberately concealecl clocuments which would haY€

V)

t1:. ..1

ll zez exonerated him. We have seen these documents ancl do not consider ttrat sueh documents exonerate petitioner No, l.: Furthermore, there is no material to sholv tllat the-\. lvet.e concealecl by NAB as it appears that they rvere in the possession.of the petitioner r,yho for reasons best known to himself failed to disclose them to the NAB rvhen he appearecl to recorcl his statement. This conduct alone prima facie castes doubt on the authenticity of these documents which' ihe' petitioner will be free to use in his defense ' at trial il' so ,

I

advised. Thus, in our yiew he has failetl to make out a case of I malaficle against NAB.

39.Petitioner No.8 Riaz Munir, petitioner No.1O Asim Sikander Khan ancl petitioner No.9 Mohammed Hanif all tl whom were a part of Evernelv also claimed mala_ficles on accolln[ that they were humb]e employees of Evernew ancl had been malafide roped into the case by NAB when the real and only culprit in Evernelv was pelitioner No.7 .inam Akbar as per Para 9 of the reference.

40.Petitioner No.lO Asim Sikander Khan and petitioner No.9 Mohammed Hanif in our view were not simply humble employees who had no idea about this scarn and what was l golng on. Both of t].e above petitioners had the power to ,l operate the bank Accounts of Evernew which they di-cl -so. operate. They would have known that petitioner N(, 7 [t1am Akbar hacl ailegedly left the company however they still transferrecl. funds from the information deparlment received by Evernew into bank accollnts which they knew belonged to companies of lvhich Inam Aktrar was a part and even lnto his Inam Akbar's own Personal account' Likewise they knew that Iuam Akbar clespite allegedly having left the company was slill operating Evernew's bank accounts bttt never r:aisecl any objectiolls hence lve Iind no malaJide on the pa-rt of NAB in respect of Petitioner No' 10 Asim Sikancler Khan and petitioner No.9 Mohammed Hanif' try

,l

263 , n

41,. With regard to the case of Riaz Munir the CEO of 'I Evernew in the sense that he was needlessly placed in the 'ii:'

reference when NAB itseU had virtually placeel the wh.ole responsitrility/ btrarne/ iiability on petitioner No.7 Inam Akbar by virtue of para 9 of its own reference. Having considered para 9 of the reference and the role a:rcl powers of petitioner No.S Riaz Mr-rnir we fincl some substance in tl-ris submission as we will cliscuss Iater when we deal with the case of Riarz Mtrnir as it appears t1.at he was jus[ a "clummy,, CEO.who had no power to operate bank accounts or do any other thing ordinarily bxpected of a CEO and was put in place by Inam Akbar petitioner No.7 to camouflage his orvn illegalities and as such NAB should have noticed this ancl thus the inclusion .

of petitioner No.B (Riaz Munir)in the reference in our view lras tinges of malafide associated with it based on the partictilar facts and circumstances of the case concernilg petitioner No.B Riaz Munir. In this regard we place reliance on the recent supreme court case of Khalil Ahmed Soomro and others V State (unreported d,ated 28-07-2017) where it was heid as under Lr terms of proving malafides at the pre a,r'rbst bail stage (although this was not a NAB case we consicler iire finding reievanti at Para 5;

sPara 5. Although for grant of pre-arrest baii one of the pre-conditions is that the accused person has to show that his arrest is intencled by the prosecution out of mala fide ancl for ulterior consideration. At pre-arrest bail stage, it is clilficult lo prove the elemenl of mala fiiie by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances ofthe case and if some events-hints to that effect are available, the same would valldly constitute the element of mala f,ide. In this case, it appears that net has been thrown wider arrd the injuries sustained b,v the victims except one or tw'o, have been e;{aggeratecl ancl efforts have been made to sl'tow that the oifeucc:; are fallir-rg within those provisions of lznv, punishablc' with five years or seven years imprisonment. All those aspects if are cor,nbincll-v take*, may constitute elemenl of mala fide" (bold added).*

I

r.i' i

za9 1 2._l

42.Petitioner No. 13 Salman Martsoor and petitioner No 14 Gulzar Ali (both Directors of Aclart) claimed' malafide on I account of NAB concealing the gentline transmiSsii)ri I certficates. We find this not to be the case and as such there is no substance to this allegalion and no ma-lalide on the part ,j of NAB. The materiai on recorci as we lvill come to laLer clearly

I

implicates both pelitioner No. 13 Salman Mansoor and ,I petitioner No.14 Gulzar Ali

l

43.Thus, since there has been no,.malallcle orr the part ol ,fl the NAB in. this case, apart from tinges in resp6ct of petitioner No.8 Riaz Munir. the ad interim pre arrest bail of ail the cjther above mentioned. petitioners deserves to be reealled on this

ground alone.

ANd

FINDINGS IN RESPECT OF GOVERNMENT OFFICIALS

some general points plead by some of the parties Introductioa.

White collar crimes

44.At the outset' as we have done before in other similar- crime are NAB cases, we observe that cases of white collar generally 6f an intricate and complex naturs and the whole needs to be transaction and each component part of the scam This is viewed in a holistic manner and not in isolation because in most cases the offence coukl not'be committed in' ttre chain without the active involvement of a-11'the accuseci i' of events which lead to Lhe commission of the offense- However,' notwithstanding this observation it is settled law i

I

in sorne way to that in cases of bail each of the accused needs beconnectedwiththea'ilegedoffensethroughaspecilrc.ioie and in the case of non bailable offenses such as this there are

reasonable grounds for believing that the aecusecl is offense for which he is connected with the commission of the chatgecl- .

zte

45.The current case, as with maly NAB cases, is rnore it case of a joint criminal enterprise whereby every accused plays tlreir role il order to achieve a criminal object al! o-f which they were aware of and could not have [:een acirievecl without the active participation ol all involved.

46, The accr-rsed in this case all claim that they are entirely 'r innocent arld not connected to the offence in any way. Without going into a deep appreciation of the material' on record it would appear that through the investigation report and material collected by NAB which we have scanned that nearly al1 of the accused to a greater or lesser extent aje connected to the commission of the alleged offence. It is more a question of clegree.

47.With regard to the Government officials lve have a-lso taken into consideration that they are paid ancl employed to serve the State/Province out of ta-x payers money and have a speciai duty to protect, safe gurard and ensure tl'lat the tax payers money is well spent and not squandered needlessly or misappropriated through corruption in performing their 1 l dutiesl functions

I

I I

4E. For offenses of corruption charged untler the NAO i (rvhite collar crimes) ttre Hon'ble Supreme Courl in the recent I case of Rai Mohammed Khau \I NAB (2Oi7 SCMR P'l i52) has emphasized that the grant of bail in such cases must be construed strictly and rlgidly even if, as in that case referred to above, the amount involveel lvas on the iesser sicle being onty apprax RS 12M (as opposed to RS 5 Billion in this case) in the following terms at P.1I54 paraT;

"Uncler the principle of law and justice' each. bail p.iliio" is to be decided on its own nrerits a-nd the iaw appliiable thereto, however, this Court. cannot .emain oblivious of the uncleniable fact that the tenclency of corruption in every field, has b":oT: 1 threatening clanger to the State economy' stnklng t: ;; t," ;;€ The"public money, allo.cated for social peopl:-' sector and economic well being of the poor lv

6G

l5 <.-- "

is consistently embezzled / misappropriatecl at ':r large scale and'"vhy the majority of the popr-ll:rtiott ' is deprivecl of essential daily. r-ltilities, lil':e prtre drinking water, hea-lth care and education facilities, etc. It has become the foremost obligation of each and every institution' including the Judicator, to arrest this monster at this stage, before it goes out of proportion, posing threat to the very survival of the Stat-e and State ecotlomy, therefore, the' Courts shall apply the Anti-Corruptlon laws some#h:it t.gidly, once on fact the case is made out, at bail stage, against the accused person' Distinctioi, however, is to be drawn betr'veen the orclinary .criminal cases and of corruption on the above inalysis and grounds, while dealing with bajl matter to arr accusecl person, charged for such hke crimes and a-1so at the time of conviction' once the case is proved against hirn then, Col'lrls are not sr-rpposed to show any mercy b'; U'LI<in 9:' a lerrient vieiv-in the matter of sentence'"

49.Indeed. as in Rai Mohammed Khants case (Supra) it is extremely tragic a-ncl rather ironic that the Information Department GOS is squaldering billions of rupees ancl eating up billions o[ r-urpees in corruption associatecl r'vith advertising t\ pressure campaigns on worlcl water clay, tintecl mirrors and l horns, cultura-t festiva-ls etc when such money could have ground been utilized to give genuine relief to the public on the in different parts of Sinelh suclr as the provision of portable and drinking water in rural areas, maintaining hospitals schoolsetcwhichwoulclhavereallyimprovedl}.rec1r-rality.oI I i.

and made life for many extremely poor people o{,this provirice an actual positive and beneficial difference to their livee' i

Arrest ancl

50.One point that has been raiseci by some coi'rrrsels t'he power of through a large nurnber of authorilies corlcerns receive riotice arrest and the fact that the petitioners must must be some before they can be arrested and that there macle:'We have not tangible material before an arrest can be prirnarily concern 'prb considered this issue as tl:ese petitions coocernlr.g the arrest baii, and a similar question specifically

?-L1.

applicability of S"9l Cr.PC in NAB cases has already been- decided by.a Divisional Bench of this court in CPD No.23B2/ 16 in the case of Syed Sohail Hasan V DG NAB dated 1.6-12-2016 (unreported) which we understand has not been appealecl and has reached finality and agaia similar i petitions are pending before alother Divisional Bench of this court on the issue which is the appropriate Benctt rvhere- lhis issue can be decicled.

Potential discrimination in arrest oi the accuded who is the subJect of inquiry/lnvestigation or is. ultimately named in a reference. I

51.We are deeply concerned and troubled try the fact .that both NAts and the Accountabiiity Courts up and down the Country seem to be adopting different policies regarding arrest of persons narned in inquiries, investigations and iJr against whom a reference is filed in clifferent provinces of the Country. For example, in Sindh most such persons tenc[-.to- seek pre arrest bail .and are zrrrested by the NAB if it is cleclined by the High Court even after the reference has been fi1ed. However in other provinces especially, the Punjab and the Islamabad capilal territoly, it appears that few accused are arresl-ed by NAB and are simpl5r allowed to seelt boncl for appearance from the concernecl Accountability Court al the time when the reference is filed. Such cases generally concern the so ca-lled big shots artd other inlliienlial persons' Such persons are not even requested by NAB to be placed by the Ministry of Interior cn the ECL or the concernei trial cor-r rt and come and go as thev please (and sometimes do not return and thereby abscond)' Prima facle this pick ancl choose b'asib- of arrest of accusecl amolrnts to discrimination whrich' is ll contrary to Article 25 of the Constitution which provides as i uncter.

Equallty of citizens' All citizens are equal "A.25(L)'law- before and are entitled to equal Protection o{ law,

(2)There sha,ll be no cliscrimination on the basis of sex'

IO

(3)Nothing in this Article sha1l prevent the State from making any special provision for the protection of rll women ancl ehildren" (bold added)

52.it is also contrar;r to the lvell settled principles of wh4t amounts to discrimination in I.A Sherwani's case (1991 scMR i04 1).

53.Such pick and chose basis on whether a NAB accused is arrested is not only prima facie discrirninatory but it will also undermine the public's confidence in the rule of lalv ancl . good, fair and effective administration of jr-rstice especially as it appears that generaily speaking the so called bigshots/influentia-ls are nol arresteci and do not even need to apply lbr pre a.rrest bail whilst the relativdly smaller fry are terrified of arrest on receipt of even a NAB call up notice a-nd seek pre arrest bail which may be deciined leading to their . arrest

54.Keeping in view this background NAB is expected ta prepare and as far as possible adhere to (exceptional cases excluded) a uniform policy on arrest in NAB cases under S.24 (a) and (c) NAO and other appiicable provisions of the NAQ - applicable to each province of the country which is equally applicable to al1 persons no matter however high or low ther'e position in life may be a-rrd no matter which province they hail from.

55.Likewise the Administrative Judge of the Accountabiliry ' CoLrrts in Sinclh shall also ensure that a-Il Accolintabiliby Courts througl"rout Sincih apply both a uniform and

L

consistent policy strictly in accordance with th6 law in respect of issuing non bailable warrants and iirrest after a reference is tiled against an accused who has not been 'l arrested by the NAB, is not an absconder al1d is not on pre arrest bail keeping in view S. 9(b) NAO' Since NAO cases are non bailable much wiil depend on the fina-l outcome of thp kq

L{q

case wh-ich. is similar to S.9I which is already pencting before this court for determination as menlioned above. i

56.However the important point to be nurde is that all Accountability Courts through out the Country shoiild have a consistent policy/apProach on how to deal with such cases in accordance $,ith law once a reference has

I

Lreen filecl and the tirne comes for the Accountability Collrt to .1 summon the accusecl and the manner in rvhich lee is summoned keeping in view that r-tncler S.9 (b) NAO cases ar'e non bailable. The Accountability court s thrittgttout tlti Country need to apply uniform and -consistent policies in this respect strictly in accordance with the law otherwise the perception of discrimir-ratory treatment by the Accountabilitl' Courts where the reference is filed a-nd the status of the accused may arise on arrest in NAB cases 4[ter the reference is filed which may undermine the public's confidence in the Accountability Courts' By adopti:rg a uniform policy throughout the Country in all Accountability Courts strictly in accordance with the law on this issue will only serve, in our view, to strengthen the public's confidence in the Country's judicial syste*l and in particular its system of accountability where the issue of pick and choose and different treatment between big shots and small fry is a burning issue for the prlblic' The Prosecution concealing favourable / exculpatory material from the accused.

57 . that the NAB Some. of the petilioners have contenclecl concea-led material which was favorable to them cleiiberateiy (both at the bail stage and also at trial) { 58. Although there are no specific rules regarding disclosure acctsid' of exculpatory material which tends to exonerate "' by Article 1tl (A)'of we consider that this situation is coverect the Constitution which provides as uncler' , - y4

, , rtr,

z'l o i l!)

"A. 10 (A), Right to fair trial. For the de Lermination ol' his civil rights and obligations or in any criminli charge against him a person shall be entitled to a fair trial and due process,"(bold ac",c1ed) tl .j:l

i

59.Although Article 4 oI the Constitution through jucticial determination hacl been regarded as the clue process clause in Pakistan the 18th Amendrnent through ,\.10 (AI fermally made it a part of t-ire constitution. . :-

60.So what is clue process? By way of just one exa-IDple the 14d, Amendment to the Uniteci States of America Constitr-ttion provides as under:

"AMENDMENT XIV [].S6el' Section 1. A11 persons born or naturalizecl in the UniLed States, and subject Lo the juiiscliction -the thereof, are citizens o[ the Ur-ritecl States i'Lritl bI State wherein they reside. No State shall make or enlorce any lar,v r,vhich shall abridge the privileges or immunilies ol ciLizens of the United Statesi nor shall any State deprive any person of life, liberty or property, rrrithout due process of law;, nor deny to any person within its iuiisdiction the equal protectiofl' of the I t.

laws,"(bolrl aclderi)

61.In the case of Brady V Maryland (373 US 83 (1963} Tl-r.e US Supreme Court held that it was a dLle process right of the accr.rsecl to have disclosed to him any material gathered by the prosecution which may tend to shoi'v his innocence in the following termsl I .l

"The Third Circuit, in the Baldi case' cGnstrued that slaLeinent in Pyle v' Kansas to mean that the ;uoppt"""ion ofevidence favorable" to the accused i was itsetf sufficient to amount to a denial of due p .ocess. 195 F.2d at 820, tn NaPue v' 111inois, 360 u.s. 264 269, we extenc{ed the test fo rmulated in Mooney v. Holohan v,'hen we saicl: "The s ame reault obtains whefl the State' although not soliciting false evidenceo allows it to go uaco rrect€d wh€ appears-' And see Alcorta v. Texas, 35s u. s. .?ft WiiC. u. Wyomiag, Cf. Durrley v' Mayo' u. s. 277 285 (dissent-ing oPinion).

We no'$, hoid that ttre supptession tly th", to ari accused prosecution' of evidence favorable '.roon request violates due process where tlle ;"Ii.i;";;' i. material either to guilt faith or . to or trad p""*ir*""t, irrespective of the good faith of the Ptosecution.

I

1.*t

zr\ i r-0

The principle ol Mooney v. llolohan is not punishment of society for misdeeds of- a .

Prosecutor, but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted, but v/hen criminal trials are fairf our system of the administration of justice q/hen any accused is treated urifairly.sullers An inscription on the walls of the Department of 'Justice states the proposition candidly for .the federal domain: (.The United States wins its point whenever justice is done its citizens in the courts.', lFootnote 2] A prosecr-rtion that \.vithholds evirJr-:Licit oir . demand of an accused which, if rnade irverilable. wonld tend to exculltate hirn or recluce the penalty helps shape a trial that bears heavily on the clelenclant. That casts the prosect-rtor in the role oI an architect of a proceecling that does not comport rvith stanclarcls crf justice, even though, as in the present case, his actiorr is not "the result of guile," to use the w-orcls ol lhe Court of Appeals. 22b Md. at 42-/., lT4 A.2cl at 169".(bolcl added)

62.The US Supreme Cor-rrt in the recent case of Charles S.Turner et a1 V Uaited States (20 17 SCMR i489) alTirme<l Brady's ease (Supra) only highlighting whether or not the exculpatory evidence to be disclosecl to the accllse.l by the prosecutiol.t lvas material to the guitt or innocence of tlre accusecl. If material it was to be clisclosecl. [r-r Charles S, Turaer (Supra) it was also held that it was not the role of the prosecution/prosecutor in a criminal trlal to win at all costs (i.e obtain a conviction) in the following terms at

P. 1503.

"I note that the majority and I share some comnrorl. ground. We agree on the universe of excr-rlpatory of impeaching eviclence suppressed in tjtis case: Ttte majority's description of that evidence, and of the trial held lvithout it, is scrupulously fair. See c/Lfe, at 2-6, 7 -9 . We also agree-as does the Government - that such evldence ought to be disclosed to defendants as a matter of course. See ante, at 10. Constitutional requirements aside, turning over exculpatory materials is a core rcsponsihilily of alt prosecutors - whose profcssioiral intcrcst anil obligation is not'to win cases but to ensure justice is done." (bold added) l

63.In our view when Article 1O(A) was added to the l Constitution b.y the l8th Amendment, after lengthy clebate and detailed consideration of a cross 'party committee oI l/4

.___TJ

]I Z'12 ' j

Parliament, it rvas not meant to be just a paper r.ight or illusionar5r right but a mealingful right for the accused in all criminal cases especially as it is a fundamental right under the Constitution and we fully endorse the findings and sentiments expressed in Brady,s case (Supra) arrd Charles S,Turner case (Supra)

64.Thus, we expect the NAB investigators a.s assistecl bv NAB legal of{icers to consider any material wfuch they uncover dtrring the cortrse of al inquiry/investigation or before a determination is made whether or not to file- a reference whether that material tencls to e;{onerate the accused from the proposed charge a:g1cl as such justifies ttre exclusion of the accused from the reference. If it does ancl the reference is not filecl against the said accnsed then that materia-l may lose its rerevance. However if a refeience is liled agaiast an accused the NAB proseclrtors at the time.rf. handing over a-11 the material supporting the reference under S.265 O Cr.PC should also without request hand over to the accused/counsel for the accused any material which. has come to their attention during the course of inquiry/ invesligation which lead to the filing of the reference or is otherwise in their possession which tencls to exdnei.at-e ' the accusecl even to the slightest extent. The Chairman NAB shall take note of this paragraph, ,ir

Mens rea

65.With regard to the question of mens rea again a number of counsel have stresied the lack of mens rea on the part of their respective petitioners in the scam through a nurnber of authorities and as such they cannot be helcl liable. The queslion of mens rea can very often be infen.ed from the facts and circumstances of the case and as discussed below bas.ed . on the material before us prima facie it can be lnferrecl that nearly a1l the petitioners had the r-equisite me.r" .ea to ' I commit the offense for which they are chcu ged in the ttz

I

l.j' I't through their acts' conduct' failure to exercise reference violating the authority, misr-tse of authority ' cleliberately Rules and sidelining other officers to give effect to their pre fr throttgh an illegal ' planned loot and plunder of the exchequer operateci by the - and deliberate c1ual invoicing system

I

agencies (which we will discuss later in this rllcler) aclvertising which deliberately went unchecked by the Government loss to the exchequer' The olficials which caused a colossal respect of each of the final d.eterrnination of mens rea in clecided by the trial cor'rrt petitioners will, in any event' be after hearing ai1 the evidence in the case'

to the case of petitionei l{o'1 Sharjeel lnam 66. Turning wtro vras the! concerned Minister at the tlme of Memon theoffense.Hehasbeenassignedaspecificrole'atpara3of "3. The invest^igation further reveals that pr-e- agencies was .i""ritr.","r.r ' ,i advertising if Sindh No-Publtc llLi.,"*o t" u;o1u1in'' ;".]",":;"i.,"",'n.rres, zoio' The accr-tsed 1

it .,i"ii r""* *""iT', ?i;;1iti il"i"'iTpi[i'; fli:U,r,r"'" :;';'.:"":'f*'#"=;";" :l'l.l:, meclia ior awa-reneql r'.

;Jr1:"ii""*".it' in electronic :tr;;il"il.;"qr,n?#iil:,l'::;i$t'*l rti g g.l.' t sin "^?. - aclve u "-, ^,Yr'J rra contrac ts between these advertrstt "* = t"-1i*i:::*ili;:11 / release orclers were rst'i"a .'':'- asencies at" exorbitant rates EvLrr l3 t'.*i" s i n :

-t*.

k*v ti"; i:, Tt"-]i""i:.: il minute cost of FM 1v Y"*"':-':"';:o:fi 'd$''***; 201o' .Further' :J-tq f:::l:::sN:r frt=

\L"''.--'-' /

altthority, in some instances' Lr

plan subnritretl :l l" aoproved clirectly tn" rn"tiiu i[i ",i' ;*' ;':' :, :l'X]ol"T -"; B ";i']" ]il:, il: "tt processed, through liT;;;"il pa,rtm e n t, a clear of[icers of Sindh Intorr uiolr'tio., of the saicl rules' with regard to the Sindh is that 67 . The first point to note and olh'Er Festival which contract went to orient Information clay of arms license and Worfl WaLer adverts e.g. on renewal named' ancl other advertising agencies I which went to Evernerv t}re even a request fuotu in tti.e reference there is not 'l:r_ -

1i

z.1 cl ll : i:'

concerned department/Ministry e.g. Culture and Tourisnr and Home ittrri*try for a media campaign on record, This seems to have been decided alone by petitioner No. 1 on hls own accord completely illegally and ..agarnst all rules and regulations in connivance with the advertising agencies. On a transitory review of the Rules we are of the considered view that they apply to awarding contracts to making advertisements in respect GOS media campaigns arrd wtrich is apparent from a letter dated O6-06-2O12 by thb'GOS pl:rcecl on record by petitioner No.1 hirnself thus the Rules hacl to be followecl in this case which is further bolstered by the AdverlisemenL Policy which was duly notilied in the Sindh Government Gazette dated O1-O7-2O11 whereby Para 2 specilically states that the Rules are to be a complierl with arid th'e S. 161 statement of Muhammacl Ayub Ali Khan I and Meer Alam Jokio which point to violation of certain

I

Rules. Letter dated 08-05-2O I 5 Muhammed Ayub Chandio l

I

(Manager Enforcement) to NAB again confirms that the Rules rvere violated when the aclvertising contracts were awardecl (Vo1. 1 P.316) The Advertising Policy, which amongst othet- things, ajms to promote transparency and to ge t the moit competitive rates for the GOS also provides at Para 2 under the heacling objective, "that tl-le major objeetive of the Information Department is to publicize policies of the goverrrment of the day ancl to clistribute / issue advertisement to print as well as electronic media on merlt basis in propii and judicious manner, in compliance with salient feature of the Advertisement Policy, SPRA Rules 2O1O and. the existing Financial Rules and Regulations." In this case as we shail see there was a complete lack of merit arld transparency in awarding the advertisernents to the aclvertising agencies which were not awa-rded i., u' p.op.t .1'a judiciotrs manner ancl were awarded irr complete violation of I the Rules and the aforesaid policy which causecl a massive loss to the excheotter.

tt u/

v?

2-rf l4

68.A pre qualification advertisement was placed in "the !

Danvn" newspaper on 14-09-2013 for advertising agencies to be trsed by the GOS, on O3-12-2OL3 a Prequalification meeting was helci whereby the competeat authority ^pp.ou"J 10 out of 18 advertising agencies 1p p." qualifying. No detailed reasons have been given as to why ttrese 10 agencies or-rt of the 18 were .considered as pre qr-ralified and were preferred over the others contrary lo 5.24A of the Cenerai Clauses Act. The meeting on 03- 12-20 1 3 was attended b-v .

pelitioner No.1 rvho admittedly was the competerlt artthorrt-v and a letter was sent for his approval on l6-Q4-2O14, which he duly approved, so that successfui advertising agencies cor-rld be inforrned. The approval, as rvith the minutes are both signecl by petitioner No.1 one day iatel on 17-04- 2014.On the same day the 1O selectecl agencies were informecl of their selection.

69.As such when the Sindh Media Festival advertising campaigrr or any other GOS aclvertising campaign was considerecl it rvould be expectecl that the 10 pre qualilied adverlising agencies should have been contaeted after 17-Q4--- 2014 to rnake their presentations, competittve bicts etc. Insteacl it appears that a letter to this effect lvas sent [o all the 10 agencies on 02-01-2014 (i"e' 3 months before they were put on ihe parrel).

70, On O9-01-2014 the petitioner No 1 charrecl a meeting along with petitioner No.2 where tJ.e 10 comp'ahtes pttt uLp there presentations and the conlract vias awa:'ded to Orient McCann for the Sildh actvertising Festival' Not a word vras

mentioned in this meeting about the prices being offeled by any of the other companiee or market rates' bulk discount or credit notes and ihe contract was ohfj' was lto awarded to Orient and nGae of the other 9' There competitive bldding. On I0-O1-2014 the competerit petitioner No' 1 signecl off on Orient On 15 " authority i.e.

the CEo January [only 5 days later) Syed Masood Hash4i

W

i-i

21L

of Orient on 1S.O1.2O14 wrote direc y to petitioner No. 1 referring to subsequent meetings, sent the meclia plan arrd proposed commercials for approval, This was duiy .'i approved by the Minister unilaterally withollt sencling ttre media plal dolvn the chain of comman:d in the Inforrna_tion depa-rtrnent for consideration which proposals wouicl then have been put up by way of summary.for his approval by the secretary.

7 l.

The petitioner No. 1 pointed to aiother pre clualification advertisement in the ,.|)awn,, clated 09_O6_2O l2 ancl other prr" .

qualification meetings to justily his stance bi-tt it seerir;

apparent to us that these documents refer to the previous

I

year ancl wciuld not be applicable to the relevant time perioel l

of the Sincth Festiva"l and other subsequent aclvertisirrg campaigns which form a part of the reference. Thus, it seems apparent to us that basecl on the documents the contracts' were awarded to ali the advertising agencies ibr the Sinclh Festival ald other campa.igns named in the reference in an illegaj. manner. With regBrcl to Orient the short time .frame i involved and the contents of Orient,s letter whereby Masood ,.,,.

Hashmi writes directly to ttre petitioner No. 1 who immediate_ly. approves the same in our yiew leads to the only reasonable inference that there was no real transparency in the a.,vard.of this contract espeeially as no prices were eyer shown or compared with the other companies cluring the presentation. These is certainly no material as to which of,the ageniies offered the lowest rate and rates do no.t seem to haye been discussed at all which in our view woul<l be ore of the key considerations ln competlt,ive bidding under the Rules and to show transpatency. As sr-rch the Rules were flouted by petitioner No. 1 in order to favor nbt just Orient but ii: all the other accusec[ advertising agencies named in the reference who were the beneliciaries of ttre scam to a massive. extent and likewise the exchequer suffered a massive loss running into billions of rr-rpees. It is in our view both. inconceivable and increclible that no mart<ei survey oI the l* .-___ __r tv,.

payrrtent rrith

/F,

: ji: ,n: r 1--. -

J6

prevailing rates was even attempted to be carriecl out or that no one in the information department had any unclerstanding of how the.advertising agencies operated as the Information department has been in existence and awarding advertising contracts regulariy lor years on end. Furthermore, it appears, from the record ttrat 4 of the advertising agencies which so t benefited have already admitted their'gr_rilt and entered into voluntarl,' rerurns lrith NAB (namely M/S Connict Marketing for RS 31O,474,t31, M/S Value Added marketing for RS

205,827 ,587 , M/ S

Xnine communications for RS 374,546,739 and M/S lnsync Advertisement for dS' 83,643,668).The complete lack of transparency in tlie whole process is further seen by the fact that most of the adlrertising campaigns which were awarded went to one advertising .t agency nameiy Evernew without any competilive ,bidding arid which did not even provid.e invoices for the work it did be.fore payment wis approved on some occasions. Evernew were communicating directly with petitioner No. I the Information IVlinister and were sending huge invoices with little if any detail which in some cases tvere approved prior to the advert being ntn ancl had no transmission receipts, no inctication 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 ali appro.ved by petitioner No.1 being the Minister (see P. 153- f 83 of IR).

72.It is also appar:ent from the aforesaid tetter (from petitioner Hashmi of Orient) that petitioner No.1 <Iirectly .

approved the media plan in violation of the Rules zu'rcl P. 149 ol tir-e NAB iR shows tJ.at petitioner No.l directly approved the payment of Orients bi1ls without anJ4 irelease order which included catrles, newspapers and websites which no approval had been given which the petitioner lvould have been well aware of and even Orient charged for FM radio BiiG ' which it had no authorit5r to charge for. Unsurprisingly 21 I cheques from orient arnoLlnting to RS 349494063 all clated 22-04-2014 were received on the same day for payment with lP

zla irjl

no staggering in payment i'e- aiter each advert was shown'

AE-

with Orient the other co-accused advertising agencies also communicated directly with the Minister and he acted in the same manner as he did wlth Orient regarding release orders arrd approval of media plqns' Thus ta-king prima into accounl all the above consicierations in our view facie there is sufficient material ofl recorcl to r:or-rner"t'

rvhic]r petitioner No-1 with the offense for which he is chargecl causecl a colossal loss to the GOS and therefore his pre arrest effect' bait granted by this Court is recalled with immeciiate Ali Turning to the case of petitioner No'2 Zulfrqar Shallwani who was secretary Information and Archive-s

Department at the time of the offense'

73.He has been given a specific role in para 5 oi the

reference which reads as under;

that "5. It is also apparent from the investigation posted a's Accused Wo'ZZ"inq"t Ali Shalwani wers Secretary lnformation & Archives -Departmetrt 2013 to Government of Sindh to* 19 09 capacity' 31.07'2015' i"- ht"' in his aforesaid misuseci t''i" ot'tt''otity in Pre-qualificationby/ selection ptott"" of aciverlising agencies he violating SSp-"nt-rLes' 2010' .Further' cleliberately#a*iiii-.n"r^rideinlentionappointed junior offit"t= at the polt of Directo-r rvho Aclvertisemen-t' of it'fot*"tion Department their active acted on frls'iffegal orders ald withprocessed for connivance *'itf' ?t"f' other he got campaign 1n approvai advertisement / awareness which were electronic t"ai" i " ' TV & Radio pre-qualrllect carrieci ot''i"*J'tto"gk' so-calied -at exorbitant aclvertising ;gt;;i;" rates t-ithout rates Due competition allJ t"""'toitting market exchequer '

I

to his misusJoi autfrority the national hassufferecli,g"to."againstp.lymelltsofl:ills rates" on exorbitant and unjustified

virtually lhe same

74.With regard to petitioner No'2 materialreferredtoinrecallit-rgpetitionerNo.I,sprearrest of a'11 relevant meetings and bail is appiicable as he was a part whicir the Mirristera:tso signed all the relevant documents i" Ayttb l(han is signed.S.161 Statement of Muhammed W

l{l z-r1

sufficient to show just a few of the Rules which were violaled and statement of Meer Alam Jokio the lack of competitive bidding. With regard to the siclelining of senior officers in favour of his favorites it is apparent from the complainant

I

ancl 5.161 statement o[ Zeenat Jahan that senior officers were indeecl malafidely sidelinecl and junior officers wtto r'r'e t e Deputy Directors were given the cle facto charge of Directot'by petitioner No.2 so that they cottlcl in connivance with :

petitioner No.l and 2 put the scam into effect' The junior :i

officers are accused No,3 Ms Anita Baloch (a BPS i8 officer rvho was given the position of BPS 19) who has absconded arrd been declared a proclaimed offender by the trial court' petitioner No.3 Malsoor Ahmecl Rajput anct petitioner Nci-4 Muhammad Yousaf Kaboro, who all foltowed the iliegal orders of petitioners No.l and No.2 ald with malafide intention violated the Rules ald ensurecl that the favored advertising ageneies got the contracts and made massive exorbitant payments to them' The signatr.lre of these officials along wiitr petitioner No.2 find place on many of the imporiant' ,i' documents ivhich enabied this scam to take place' Thus 'we into I are of the view tllat taking all the above cousiclerations account there is prima facie snificient material on recorcl to has been connect petitioner No-2 to the offense for which he as q99-h- charged which causecl a colossal loss to the GoS and his pre arrest bail is reca-lled with tmmediate effect' and

75.Petitioner Np.3 Mansoor Ahmed RajPut willi petitioner No.4 Muhammed Yousaf l(aboro, along earlier has accused No.3 Ms Anita Baloch (who as mentioned r:t'fender ' by the' absconcled and been declared a proclaimed Par':r 6 of the triai court). have aII been given specific roies at reference as under:

Anita Ealoch "6.As per investigation Accused No'3 Ms'- BPS i8 oi'"tiot' lnrormalion in i'oI4 ,; tz'zots'ana rrom 16 0f ":,i"5]r";';""iip"tv [i]"ir"iir.iiil; ;i to

12.02.2014- tf'e "cco-sea No'4 Manioor Ah'm'ed'

Raiput was posted t" Otp"ty Director' Inforntaliotr in z'zo t +' Fu rther' the -te' ffi's"i; iiri- i s.i,i.z o t ii q- r Lz- l

'e Qc) lq

Accused No.5 Muhammad Yoiisuf Kaboro was posted as Depr-rty Director lnformation in BPS- 18 from 31.72,2013 to 16.Ol.2Ol4 ancl 18.12.2014 to 17 .12.2015. The Accused No.3 to 5 cluring lhe tenure of their respective periods, they were allo'rvecl to rvork as Director lnfo.*ation (Advertisement) by Acctr'sed No'2, Zulficiar Ali Shalwani. They are louncl to have nri-sl-tserl their authorily as they illegally issuecl release orders'tor media campaigrts at exorbitant rates witllout follorving procurement rr-rles ancl due competition between the so- .i ca1led pre-qualified advertising agencies and rvithot'tt )

'I

ascertaining the market rates of each Flvl Radio ancl TV channel ut.L p.o"""".d the bills for payment from AG Sincih office at exorbitant rates in connivance with Accused No.1 and 2 which resulted into heav-v loss to the national exchequer".

76.Much of the same material in respect of petitioner No'2 applies to them since they were an intricate part of the scam deliberately put in place by petitioners No.1 anci 2 in order to give effect to the scam (S'i6I of Ms Zeenat Jahal)' Withnut- their active conrlivance ancl involvement in misusing their authoriry /failing to exercise their ar-rthority the scam could not have materialized and they too violatecl the Rules' Petitioner No.3 Mansoor Ahrned Rajput and petitioner No'4 Muhammecl Yousaf Kaboro had no any lawful authority to sign letters or any other clocuments uncler the "rit1e oi Director" but they deliberately ciicl so in order to facilitate the crime. The fact that petitioner No'3 Mansoor Ahmed Rajput was allegeclly signing as "for'in our view carries no weight as l he had no suctr authority to sign on behalf of the Director especially when crores of rupees were involved' In anY ev3nt we have seen his original letters to the aclvertising a'gencies inlbrming them of their selection and the word "tbr" is not present before or a-fter his signature' As surch this argument hnd is without substance. He has not deniecl his signatr-rre themalefidesarrdconrrivanceonthepartofpetitiorrerNo-3 Katroro is I{ansoor Ahmed Rajput and petitioner No'4 Yousaf they signed clearly shou'n by the fact tha[ on some occasions as Depr-rty Directors and on other oceasions they "ig""d 1] , on record Directors on dates very close in time' The material shows thaL they rvere de facto Directors wleo for the purpose i,

A4

:l

I

of carrying out the crime could be reliecl Llpon to do the needfui and hence Directors such as Ms Zeenat Jettran rvere sidelined. They were also fully aware that Ms Zeenat Jehan was a Director in the information depzrtnrerrt who was available and clicl have the authority to sign yet none r:f them either approached her or requested the secretAry to appoint a full time director. They have not been able to polnt to a single document on record whereby they have been given additlonal/acting/look after charge as Director which, belng experienced Informatlon officials, they would.have known was requlred for them to sign as Director, but which with malafide intentions they..deliberately igrrored. As Deputy Directors ttrey were both signing release bills which .ll they had no iawful authority to do worth billions of rupees .

(see S. 161 Statement of Meer Alam Johio and other documents on record bearing their signatures). In some cases the record reveals tJlat one advertising agency Evemew was sanctioned'a payment even before it was put on the approved hst of advertisers by petitioner No.3 Mansoor .Ahmect Rajput and the illegal Bill for Orient vis a vis FM radio rvas a.lso signed by petitioner No.3 Malsoor Ahmed Rajpttt despite the bill being a fake arrd bogus one. Both the petitioners 3 and 4 were releasing payment before the work was carried out it-t connection with bogus bills which tliey in any event had no lawful aut[ority to do being only deputy Directors. Petitioner No.4 Yousaf l(aboro signed over 12O Bills as Director and l.l although he denies his signature on a comparison with his signature on his lawyers' vakalatnama it appears to be the same to us and as such this argument in ol-lr view is unsustainable. Rather it appears from the record that both Mansoor Ahmecl Rajput and Yousaf Kabore were both fully on board ancl played a pivotal role in this scam.' Thus, in our view there is prirna facie sufllcient material on record ^Jo v connect both the petitioners No'3 Mansoor Ahmcd Rajput and No.4 Yousaf Kaboro to the offense for which they have been charged and as such ad interim pre a-rrest bail is recalled in respect of both of them with immecliate effect.

I

t) ooc:.

(J 6

l T 77 . Petitioner No.S Sarang Latif Chandio at the time of the offense was information officer (billing) atrcl tras been given a specific role at para 7 of the reference lvhich letrcls as r-rnder;

"The invesligation also revea-1s that Accused No'6 Sarang Latii chandio was posted as luformatiotr Officer- (Billing) in Advertisement Section, Sindh ' Information Department in BPS- 17 from 17.12.2OL2 to 16.09.2014. Dttring this period he processed bi1ls for inedia campaig-ns'at exorbitant iates without verification of transmlsslot.l certificates and without ascertaini4g the market rates of each FM Raclio and TV channel and p.o.""".a the bills lbr payment from - A.G Sindh bftice. He did not obtain the invoices of the mectta channel and got approval - of over invoiced bogus' bills in *ith his superior oflicers / for pay.ment lvhich resulted in a httge loss "o.r.ri-rr.r"i """"""a to national exchequer".

78.In es'sence the role of petitioner No'S Sarang Latif Chandio was Lo verify the biils charged by the advertising agencies by comparing Lhem rvith the transmission' station certificates which they received from the T'V/radio which airecl the advert and which sroulcl have shown the :

.l charged the amount which the T.V/ Radio station actua-lly ttris regard advertising agency and other relevant material in to ensure that the advert had been aired and at what rate' to check anf Sarang Latif Chanrlio however completely failed made and were of the bills which the T'V ancl radio channels relied on paid by the aclvertising agencies insteacl he blindly thefakearrclbogusbillswhichhereceiveclforpayrrientfrom at.'d exorbitant the advertising agencies which enabled fake andunjustifiedbillstobepaidtotheadvertisingagencies. authorit-v on the pirt' This was a'complete faiil-.rre to exercise leacl to the loss of of petitioner No.5 Salarrg Chandio -which Had he carriecl out billions of rupees to the state exchequer' iilegal payments his functions then such unjustified and were processed by him- ' coulcl have been stopped' Fake bills I and when these are read in light of the 5'161 tt"tt ""t'ot6a),,., , l,i

i,

l1--

Javaicl Ahmed along with associatecl clocumetrts lP '287 -2g3\ i there is tittle doubt that petitioner No'5 Sarang Chandio .'l cteliberately failed to exercise his ar-rthority in order to lavou( the beneficiaries. His conduct in failing to verifv the bills rvas also in compiete violation of the Advertisernent Polir:-v in termb of the section ciealing with billings and pavments which he would have been fully ar.vare of' He may not have been a hr'rge i\ cog in the rvheel bltt \\'ithout his active involvement and connivance with the other government co-accusecl the- wheel could not have turned and the scarn coulcl not have [aken place ancl hence he is equaiiy as liable' Thus' in ortr view there is prima facie sufficient materia-l on recorc[ to connect hitn with. the offense for rvhich he has been charged ald his pre arrest bail is hereby recalled with immediate effect' , , Petitioner No.6 Altaf Hussain Memorr at the tirne of

theoffensewasSectionofliber(G}Informatiorran<l role at Archives Department ancl has been given a specific ? para B of the reference wl-rich reads as under;

"The investigation also reveals that Accistd' No:7 (General) altaf Hussaii'il;;; is sectlon officer " drrecr : ;,

in BPS-17 since 22'10'2011' He was uncter pelevqrlt commanci or No'2 ancl during the period he "lt'""a tftt bil1s for media camPaitrnl,il ,l "ig,,.a bOOotthisbehalf'HeusecltosignontfleDllrs"i'i -: . for pavme.t Jiltt'l'"t Tq.i" "]:111:il:j "'iii"otio" bil1s contalnlng . rules. He clid not check the [or exorbitant a'nou"ts which lvere. approved' national'' [o payment *t'llJt"-"Jt"d into huge loss ,''

i ,.'i above relatins

80.We consider that mucil of the discussion 4 aldies to to pelitiouer No.5 Sarang Latif Chanclio also who was also D"D! ^ttd petitioner No.6 Attat Hussain Memon " signed ali the bills without verification.and as :""1 "T1"1' O' prevented scarn Lry exerctstng again he could have 'the Tt. i deiiberately failed to Oo nt' authority but in or-tr view he ."o"1" ,i He reportecl directty to "n;

was arl integral part of the scam' Shallwani ancl blindly 'r petitioner No.2 Secretary Zulfiquar Ali he was a small cog'in a big followed his illegai orders' Again 'li-- l :l . ':l-

I

JJ

2.8\:l

and connivanctr with rvheel but without his active involvement ofiicials the lvheel cor-tlcl 'nol the other co-accused government 'l'htis' anci the scam cor-tld have been prevented' have turnecl material to connect him to the r,r,e find that.there is sufficient bail is recallecl commission of the offense and his pre arrest t:

with immediate effect'

THE BEI'IEITICIARIDS .

FINDINGS IN RESPECT OF

(advertising agencies)'

Introduction the Government officials

81.Whilst clealing with the case of l'rave ii'rbady No'l to 6) earlier in this orcler we @etitioner's there was deliberate anci malafide rnisuse of founcl that

authority in violation of the authority/ failr-rre to exercise in' rules and regulations by the Government officials relevant rvhich caused a massive connivance with the beneficiaries gain to the beneficiar-ies alcl a huge loss t-q lhe financial government exchequer'

a-llegation against

82.There is both a general The "'' one general

weil as a specifitc one' aclvertising agencies as under: at Para 4 of the Reference reads as which is founcl

..Para4.Thattlreinvestigatiorralso.reveals^that issued by the ,medra*c.ar'", '-iar, ultcrior "utJ'.i=*e',.*"""1"-"-,,:""nliil"T"tTn,H"TIi showed the actual ;;.t;; ana mat'na' rvith the oflicials ;;t'1T;;ot" r:T;,"ff;;.rs ::'I:"-"';;;.,,r,ts ;:;: ,#;;, *.' J "r oi *' 1, 1n 1:ll"*:l :: i',: : "if", il: r.*::

iet onlv- tii:i,Iit+i-*# lly: 11il^'vr""""";;"a';.;* v'.

ffi ihe

i,, rnetlla iotal bill / invorce r-tsr'ErY channel (bolcl "tdtled) peltinent and relevant to the outset it is both

83.At observethat4otherMedia/aclvertisingcompan'iesry'i' va'_re Acided Marketing i pvt Ltd, M/s connect Marketing ' Ltcl and M/ s Syt'rc S Xnine Pvt Serviceq Pvt Ltd' M/ been illegally Ltcl) o' *no* had allegedly Aclvertisement Pvt ^t'

ZBE-

,i.1

Rr-lles lly'the awarded advertising contracts in violation ol tl'le Ministry of Informatron ancl i'vho had all over chargecl the

Ministry of Information and rvere faced with the same using the allegations as the advertisers in the reference by ri same moclus operancli all admitted their guilt atrcl entet-ecl

voluntary rerurns with the NAB rvherebY theY rePaid into their ill gottelr garn s.

Turning firstly to the case of petitioner No' 11 Masood the scarn' Hashmi who was CEO of Orient at the time of

I

t,

84.Apart from lris general role of suppressiL-tg' lnyoJ ces at Parel 12 petitioner No.11 has aiso been given a specitic role of the reference rvhich reads as ttnderi " 12. The investigation further reveals' that Acer-rsed CEo/Dir-ec-t9r I' N".ii'-iy"a Misood Hashmi is aqelcy..ot o'*.ler of the advertising Yl:

o;;;i communication Fvt' Lt;l (orient) which "r.r"ff Information .*"1*a- R".SZO Million from Sinclh -b"p"ti*""t ';"-;;;;" against release of aclvertisement on Electronic Media (FM/TV)' He

;i;;"i';t;i""" o''t the exorbitant rates lrom the meclia and sarrle amount was claimed from the he got spc'cial Sindh intormalion Department' but to 157o a[iency ai""o".t" / creclit notes in acldition ;;";;;;i"; from the media ancl as st-rctt:',rvas' of exorbitant rates which the i'il'.i*o t"i"^ri'*'to ihe national exchequer to "r"i"".'"-n"".ri.i"w tune of Rs'75,830,568/ -

charge exorbitaut

85.His main cLefense was that he dicl not to charge the rales rlfricfr rates and that he was fuily entitled r

This was because accorcling to hitrr tlris lr,as ..,, he clid. iI, "respect The *i"l]t* unregulated inclustry' ln this ,

Broadcasting Association Rules and Regulations GoverningConductofAdvertisingAgencies/MBHS provides as under at Pa:a 9' - ., r ' .- be r' -9. AIl accreditecl Agenci-es- -{. t'Bt'* shall on tommission entitled to " il-J*"'*" of 157o the Broadcast the businesl il;;J;t tnem 1t1lf ' Houses .t'i """ oglitty - I MBH sha-Il clzum' or cletnand ; t"t:ti"u" oty comtnission /.t- .l .l ,

I

beyond the compensation liom "Broadcast Hor'rse Provided that at its-.option' a "p..iri"I'."i". to Broadcast House may allow a cash discount- dny AgencY / MBH"' C,ov1r1;n8 Thereafter Rules and Regulatious(As arlo-ptcd at conduct - of advertising agJncies ti" e*tt*"tdinary Ceneral Council Meeting 1977 ar,d amen-ded bv t.i i;io i""'rs';-o-..1t"t"t, ttt.- Or,a.."tdinary Gcneral Council Meeting i.ia ."-nr.tch, 1i, 2oo3, March 3L' 2o12'and provided as under' ftl"".fr 3l", 2015) .

agencies' rvhether. provisionalllT .

"7. A11 accreclitecl be oi f.,ir ."...dited, slrall15% entitled- to. trade ii=.."",,-t"t exceeding tnemofrvith .tlt,:t'"1:: "" ;;;;;";"" Placed t'| rhe T:1b"' oublications shail claim' demald' arlct no agency

"d m pe4 sq1 io n l'; l' i "'L'".'t or . co specilied this lrom a member pubticati'on Lreyoncl a rrrernber rate. Provid.ed that at its option q:il# ; agency T:^,:l':i il't:

15% to an "l l",liHffJ :. l'" ln casc ;

'-""""-T:-;",:.

of billing irt bills by the agency within 3O days an<l 15,days in lr]trry"tt"'Ldittd agency agency ""=""of provisionally accredited case '

according to Orient they were entitlecl to keeP (a) i i 86. Thus, 'anY other forrn of bulk 15% commission as of rlght (b) them discount or (c) creclit note availed by to nLlrnerous a7. In this respect Orient referred c reclit notes 'which' transmission certificates' bulk discounts to keep' they had received and were entitled r'va1' of an e;<ample..o[

88.Modus Operandi: hr effect b-y agt:ric1' t'or i r'vas that the aclvet'iising ';i' wtrat r,vai the happening example r,voulcl be nutr' * invoice by the T:V,t-o*Otrrl'.tll-'llli agenc! ut:t '

aclver-l ol RS ]00 out of 'which the aclvertising blilk ' 157o as commisston' therl kept another allounl as '''' b1' r'vay of credit' auother amollnt cliscoutrt say 159/o' then kepl so ttre acivertising agency vvor'rld only ':i note sa,v another 159t' the aclverting agency invoicecl the' ']' pay RS 55. Horvever rvhen GOS fot' the achert run by ttre T'V information Depzrrtmenl i11-vil'-i the ad"'ertisins agencv gave a ainerelt company *oulti or-rly shorv RS 100 less 15%o L-ommlssloll "' ".'o*r,r-'t '' "vhich ,i l -i.

ri i;Tr iriit ,

4(j s 8't the cost of the advert to the GOS. was RS 85 which ailowecl the advertising agency in this example to pocket an extra RS l 3O on top of its allowed cornmission (r.vitir the COS allegeclly having no idea about this practice when for all practical ptlrposes this extra RS 30 was most probably split betrueerr .a the advertising agency which hacl been favoureri and the Covernment officials rvho are also co accused in this reference and favorecl them by violating the Rr_rles)_ As sncit the true amount pajd to the T.V company by the aclvertising agency has been dishonestlv suppressed by ttre aclvertising agency in its invoices to the GOS.

89.Even if we accept that the advertising agency ivas a.llowecl 15yo commlsslon as per Para 7 of the amenclecl Pakistan Broadcasting Association Rnies and Regulations Governing Conduct of Advertising Agencies / MBI-IS onl_\.?r.r ,, extra 1570 u,as available making a tota-l of llo% if the bills were pald r.vithin a specifiecl periocl. However as is apparent fi'om the documents on recor.cl Orient was cltrirning far. more than this as inclicated by the table in the reference (r.vhich is reproducecl below) which has not been clisputecl by Orient r,vhich in the various columns shorvs the amount receivecl by Orient from GOS, amount actlta.lly paid to the TV Channel by Orient and the resultant loss to the exchequer.ln nearly all cases the discount was well over 3oolo reaching as high as '7oo/o in some cases.

M/s Orient Communications pvt Ltd.

S. Channel Amount Actual paid or Diffe renec / IYo received {TV/FM} payable by the loss to national from Govt. agency to the excheouer by the channel after rvhich also Ageacy deduction of includes agency amount of commission & crc.clit Note / special Special discounts discount obtained by the agency Dun,ya 7,3A2,667 4,773,a84 1,501,393 Ne-.vs TV Channel

a8c

2 Geo TV 30,792,184 23,4a2,O85 3,L66,2Q?

Network ,

Metro .

One TV Chanr-rel + Samma 3,647,000 2,306,91!l 793,031

TV

Channel

ARY 9,102.916 7,50 1,958 682,763

Nelvs TV Channel b A*'az TV 23,173,800 8,190,1 13 16,679,734 Channel 7 H ealth 1.790,248 1,253,774 22A,,25',7

TV

Channel Sindh 15,90 I ,999 2,767,418 rL,582,,671,

TV

Network 9 Mehran 16,517,001 1o,234,254 6,43I,854

TV

Channel 10 Dawn 17,O10,663 11,175,915 3,283,15O News TV Chanrrel L1 N e',vs 5,285,000 2,676,O11 1,93r1,364 One TV 1i

Channel t2 Solo 21 ,67 t,500 5,O00,000 13,42O,775 Media Group 13 Digi 4,306,500 2,s,00,000 1,431,5OO Media 14 FM 1OO Fake TC ct Invoice 5,99a,625

Totai L73,L32,t978 87,922,5O2 75,$30,56iJ

90.The above modus operancli of clual invoices and lhe. above chart in ottr view comprehensively shows that Orient rvas cleliberately ancl rvith matafide intentio.n suppressing invoices frgm the GOS ,,vhich enablecl it to iitegall-v benefit greatly alcl cattsed a colossal loss to tl-re GOS ' This rvas the modus operandi adopted by all the adverti sing agenbies lvho are petitioners except that the ot her agencies conduct was far more illegal as they had no credit notes i

J

or bull< billing discount to show precisely why they hacl ,l

deductedwhatamount.Instead,aswilltrecomeaPp:li'eflt later in this order as we deal with each advettitir.tg , l

V,

t1. i

i3

*gency, apart from the 15% commission the other co- accused advertising agencies simply charged any illegal excessive amount which they choose through this dual invoice system. ";.

91.Had the bidding process been clone in a i?rii- rrttcl transparent manner through compelitive biclding in accorclance lvith the relevant rules (lvhich rve have la.lreacly found that it was not) then such practices cortld have been 1 prevented ancl such illegal rurd Llnnecessaly loss woulcl rtot have been causecl to the COS,

92.With regard to over billing by Orient and Everrrew , reference can be macle to S. 161 statements of Mohammed i Harris Hrrssain and associatecl documents (lR P.2tS to 2231 ' Ghr-rlam Hussain ancl associatecl docr-rments (IR P'225 to 231) Kaleem Ahmect and associatecl documents (lR P.239 tci 245, 251,253), Mohammed Ali Saeed and associated clocurrreuts ' (IR P.255-267) I(aneel Iqpat (lR P.269 to 273) and Qarzi Ahrnecl Maleen (lR P.275)

93.Although we observe that Orient is prepared to..ilgt. Llp,,r. securitSr in respect of the amount of loss it cattsecl to the CIOS .

in return lor its CEO Mr. Masooci Hashmi being granted pre arest bail we, at this point in time, reject stlch option which we have done in. other cases before us as a matler of eonsistency, especially as their hacl been no malafide againsl t

Orient and the arnount involved is colossal Orieiit mary ' however, if so advised, approach the NAB uncler S'25 (bl NAC) in respect of settling this amouut b.y way of plea bargain as thereferencehasalreadybeenfiled.Thisistirestage.ofpre par-L of tl-tc arre st bail artcl rve have founcl no malaFrc{es on the NAB and are of the view that prima facie there is suffi-cieni

material to connect the petitioner lvith the o[][ense ior which

he has been chargeci zurd as such hereby recall his irre arresL

bail with immecliate effect Vt

'f :Il1lI'l:)r'1 - 1 ' r/.1;r'Jrt;!i:ll

4e -.7

,J

Turning to the case of petitioner No'7 Inam Akbar who :t'

allegedly was a private individual having divested all his

ownership rights in Everoew prior to the scam' ,' : :ii

94.At the outset we woulcl iike to bbserve as reproduced in I ,

I

Lhe section clealing wittr the petitioners arglllnents that he l has reliecl. on a plethora of authorities' Most of thes;c 1;

to the cl.lse. at authorities appear to us to be of little relevance be a tist related :

hand and the list of authorities just seems to " .

arlY ' :i to ali NAB bail cases rr. n off the compuler rvithotit case t" n""O thought as to whether they are applicable to the .i to unctue delay' others relate to post For example, some refer ,.1,

etc. Aithough we have carefully considered all ;:'

arrest bail counsel in order' to ' these authorities it.is expected that senior , tal<e the time and I ';i assist the court and make their case woulcl '; which they ' ':i effort to themselves go through the authorities placing them and intend to place before the court before so ,1 of their case as ltrls woutcl.. '1' only cite relevant ones in respect the valuable. 11": of ' I both genui-nely assist the court and save Counsel in choosing such cases to cite in oirr vielv the court.

on , ',1 'r',' only the relevant cases mLrst act as a sniper kry producing point rather than using a scatter gun appro'4ch "O lltt". ll ..i Court authorities lvhich are drrectly 'i' is a few reievant Supretne rather thal hundreds of I I on point which will carry the clay here nor there' ' '- 'i autlrorities which are mainly neither " ' ,: r' jurisdictional issue raised by the

95.Tuming to the petitioner- We are of the view that NAB

S'9

""i' and11",:.t::

NAO tlrat no rj under jurisdiction to deal with this case 'ff been commitied O'^tl: .' ;:

proceclural irregularities have Iill

NAO

In essence as per S:18 prior Lo th.e filing of the reference' " receivecl tiom Ms Zeenat' NAB actecl on a complaint '"i:1, ' t; ' was director '" :"t l ;

who at the t.ime of the complaint The complaint' ",n"l*1 "'t::: d information clepartmenl' GOS' being c'ommtt'teo "' - l::

things, speaks of corrr-rption as such the ChairmSl I\IAB ' Information Department ancl an inquiry into such allegation of corruption illll authorized ,' NAB unearthed the ' ^o*L-,t'', inquiry ancl then investigation

,I

:I

)l) ell ,

sc;un ii'r tlre Intbrmation Dr.ptrrtrner-rt r;r-ilj ,,,r,rl.i,,n ,1, G.r"ernment ofticials narneci rr1 tiris r.eir-'re',:;c ir.rr rrrll advertising aqencies nanne cr iLr this re lerenc.: r.r;rriclr c.lLrse(l e. colossa-l loss to the GOS ancl as such tite Chl,urrnan iilAp, tile,.l this relerence r-tncler S.9 lrlhc.j. As such wc lit.rel n r,r pro(_rralLtr.rl :i-r,:'-r-LIali'.rli lTt the ,,1 ,- Iilirri tlr: r.,,t,.r.,.1r:, .r1,J r.lri, -irLusdicriorial objection is rr.,ithor_rt s,r LrsteLr.r c,:.

96, in our i,ier,v tl-ris rvas a carefully ilnd cli.:verlv pre;rla.r.l nc.,r_l scam betr,l.een petitioner No.7 NIr Inam At<bi.rr. r.i,hlr l"tr.i.r t:,.r the e:tecutioii r;[ the scarl atiernptecl to lear.c Evernerr,, a r-rc.l il governrnent ofllcials in the Information tlc.prl lrrir:nt ( i(..)S i_r:r ri,c r,, ill conte Lo later.

97 . As lvith the other aclvertising agencies as lvell as. .r general role he has also been given a specilic r.ole aL 1:,rrrr.,r ,:[ I the reference svhich reacls as Llnder: "

"9.1t is mentionecl in the investigiirion rr-'l){)rt Li,i.i.i. Accusecl No.B Iram Aktlar rralj or.i,'rlrrl' f r..r advertising agency M/s. Evernelr Cenclept-:,..P\It. Ltd. anci as snch he ttas been lo t-tncl ot erirll beneliciary anct key player of the saicl ar,lv.:rtising irge r r c-v-.-. .Fie rvas lhe Director/sharre hotcter of the company having 2 18,078 shares :1.s orl 17.O2.2AL2. Thereafter o1r 04.0.5-2013. the accused fnarn Ahbar rvith rna.lirlitle ili[i'iIi i{-jlr sholvn in the docurnenls transferrer-l hi6 :.;li;.rrri:, t,: his ernployees €urd made therrt ciirecl,;rs |, shal.ehelclers, l:r-rt actualty he renleiilrecl tlie ,-,-tl'ntir' /. real beneliciruy as he hirnsell '...rpertrled Lu'c' ac.ollrlts ol ii.. ca(npan-v i.e- Aciount No.0O2420O2228303 ma-intainecl at Sill{ Barlh DHA "Y'1 Block Branch La:l'rore Th€i ltlltolrnl receivecl ltorn Sinclh lnformation De1:':rtmr:n t" Jl;;i:: I been founcl transferreel to his persona.l al; i"':tl '"' his other companies' accounts' LIe :;iLlirer:l agreernents with meclia cirannels regardin-e relt'tsie gI aclvertisements iI1 media cha-rlnels thr'''r'it{h Iri:: compa-ny nan1e1y M/s. Space CraJ't Pi'l' Ltd resardi;g aclveriisement ' of Sinclh Inlbrtuation De"p ar-tnr'-ert t clttrin g the p e ri ocl u n cl e i tn ve s t g;rti o 11

I

Ado'.eorrer, he is thi maj-or beneficiarl4 of tlre itlqgal proceecis of R s.2,223,Lg8,O92 / - thrlrrr;4h e;i'-:t iji: i '. titling sirov'itg exorbitant raf-es of tnecli;r r-'1Iai.it.tt:I:s in coinivance-rvitir malagement, :;ir:-rr* [r '-' ltl trt-it 'ti- t.

5l Blz M/ s. Everneu, Concepts and officers ol Inf ormation Departmelrl"

98.With regard to fixation of rates the rnain al'gltment was :

that this was an unreguiated iuduslry aulctr that the advertisers' couid come to what ever arrangement they liked with the T.V channels no matter how clamaging and loss causing such arrangement causecl to the COS ancl benifited the advertising agency,

gg. We completely reject this argr-tment ancl our findings in this regarcl in respect of petitioner No.1l Orient are re- i.

iterated. In fact the case of the petitioner is far worse than i

that of orient as he has not produced a single document to shorv how he bilted the T-V companies for their adverts'

I

Instead he. submitted massive fake ar-rd or inflatecl invtrices to the lnformation Department GOS which in collusion lvith the Govemment officials in the lnformation Department named in ' this reference caused a massive loss of RS 4 Billion to the-, GOS and benefited himself to that extent' ;

100.As with Orient the table showing the amount of loss causecl by Evernew to the GOS is set out below for ease of

reference.

Evernew Table ofloss caused to national exchequer' S. Channel Amount Actual Difference / ltro {Tv/FM) received invoice loss tt:

from Govt bY amount of natiorral the AgencY the e:rchequer (Rs.) channel (Rs.)

lRs.)

56,O72,333 57,816,449

1 Dunya News 113,888,782 TV Channel

Geo TV 2t7 ,34r,755 '44,87c),665 L72,1162,O9O ne trvr: rk TV 7 r,0 18,5 14 9,468,992 6t,549,522 lndus Channel 9A,A44,26L 4 Metro One TV r17,197,428 19,153,167 Chatrnel L22,555;L67' S:rmrna TV 157,28r,251 34,696,Q84

Channel 3A,766,434 6 Waqt News TV 51 ,436,438 12,670,ooo Channel 135, 555,283 tiTi\ 'tv 270, 538,615 r s+,9Sil,s;'l

't'"t

- ,t"l

zgB 5l

Network B .Jaag News TV 89,s60,833 30.835,09!) 5A,725,734 Channel 9 CNBC Pakistal 27 ,69 t,640 6,404,367 18,2A7,,273 TV Channel 10 ARY News TV 125,219,886 47,604,090 T7,.6L5,796 Channel i

-l 11 Awaz TV 180,32 6,3 1 6 47,1?-,2.9Lb 1 ,1. o t) Channel 12 Roze TV 47 ,O27 ,672 4,898,217 42,r23,455 Char-rnel 13 Sach TV 39,325,O97 4,684,000 3.4,641,O97 Channel 14 Health TV 40,3 r0,093 22,317,7-+7 17,992,3r1'b' Channel 15 Vibe TV 7,592,529 2,426,800 5,L65,729 Channel IO A-Lite TV 52,949,381 8,237.,794 44,711,583 Chanr-iel l7 Dharti TV 132,038,802 62,706,OOO 69,332,402 Channel 18 Channel 5 TV 97,741,523 16,2S8,500 81,453,O?3 Channel i9 Filmazia 'rv 73,943,108 9,501,840 64,441,268 Channel 20 ARnj TV 49,b44,928 3,887,938 45,'.766,99O Chan ne I 21 Sindh TV I 1 ,8,969, 179 50,782,19',1 68,186,940 Networ-h 22 Melrran TV 103,256,695 27,()50,827 76)9O5,&68 Channel ,3 Abb Tak TV 114,289,688 47,477,744 66,811,944, Channel 24 Dawn News TV 176,056,628 4.t,304,59 i 13t,752,O37 Channel ,.

:.) News One TV 73,398,183 24,967,400 4A,43O,7A,3 Chan nel '26 A TV Channel 27,281,403 9,s4?,7s0 L7,937,653 '27 Express TV 94,194,812 56,530,075 37,,66'1,737 | Channel TV 147,773,54 1 57,3I I ,ir68 9A,461,873 Channel L64191A,37'l 29 Hot FM 1O5 t7 8,+94,432 i 3,576,055 Network 27 ,27 .34rt 50,908,516 30 Jeay FM 8B 53,635,862 ,L

I

Network s6,509,649 2,31 1,800 34,509,2137;

31 FM r00 Pakistan 12,715,335 q i9,785 11,795,55O

FM 104

Kashmr.lre 1,338,750 36,31.1, ti4 (i' Josh FM 99 37,650,594 Karachi H cl 2.,223,198,A92 TOTAL 3,136,294,5 oa 914,7 53 ,s29

L:-

'I I :lr!,$

zct

101.Since the follorving media channels rnentiotrecl in the table below cticl not provicie the record / invoices inspite of repeatecl notices by NAB since this amount as alieged by NAB I in the below table has not been werified we wlll not consider the same for the purPoses oi thi= bail application and confine ourselves to the loss of RS 2,223,198'Obl as mentioned in the table mentioned above as this figure was verifiecl through supporting material.

S.No. Channel Name Unverified Amount i Bttsiness Plr-rs 53,578,663 a Capital TV 225,055,4 1 1 a Digi Media Cable 8,695,652

4 D it-r Ner'vs 4t,278,183 5 Khyber Nervs 7,2ts,338 6 Kohinoor TV 75,095, i 1 1

7 Pashto 01TV-- t7,'573;3?-,9

E Purnj ab TV 10,850,175

9 7,5a4,570

QTV

10 Rohi TV 70,599,831

11 Royal TV 5l,O4f:,Sti9

l2 Star Asia TV 44503,971'

13 Value TV 38,841,266

l4 Web Adyt. 1,708,621

Web.-rlP 1,719,565

i6 ZanTV 6 5 () 6 o E 65

102 . With regard to the massive illegal over biliing thror-rgh | ' ) dr-ral invoices the same S' 161 statements and associar[ed ; 'I

documents as referred to in the case of petitioner No' 1 1- ,,1

t Orient is relied upon and in acldition S' 16L Statement o[' News (lR P'215) 'and Mr-rhamed Haris Hasan of Metro One charti' IR associated clocuments at iR P'219 fVerification P.Ll32(Evernew'sinvoicetomefliaOne)'[RP140OGOS cheqr-re to Evernew which show that the media channel and the GOS rl'as charged Evernew. RSB50,O00 less 157o l/ ,

: r--irii*Hiiiii

zqs

billedRS4718438showingi11egaloverbiilingofRS37t8438 Zaffar Likervise S' 161 Statement of Mr'Mirza by Evernew.

at lR of I(TN (IR Pi807) trtrcl associated clocttments Javajcl Chart)' iR P'1829 (l(TN News invoice to P. 1811 (verification (GOS Cheqr-re to Everner'r') which shorv 'that Evernew) IR P'407 and Evernew RS 9744000 less 15% commission KTN invoiced GOS RS 185 13600 rvhich was duly that Evernew invoicecl to Evernew by cheque showing iilegal over billing paid by GOS ttnclue which was loss causecl to the GOS and of RS 8769,600 on the Evernew. Many other exampres ca- be found benefit to record.

to his pelition filecl in the Lahore High '

103.With regard in 'the advertising Court seeking greater transparency that this petition was filecl after NAB indr-rstry \,r.'e note ancl after petitioner Inam Akbar had been initiated its inquiry bail by this court eurd was sirnply an granted pre a-rrest from the repercussion" ",t,t:: attempt to camouflage himself hirn in connection with this scam ancl an NAB inquiry against ugoocl guy" ancl nothing more' to paint himself as the attempt of f;tftrollr:' ' In fact the devious aJId malaficle conclr'tct 104. t",1l,llll illustrate<l bv rhe No.7 Inam. Aktrar is further "tl distanSe . ' artempted to cleliberateiy the scam rvas set up he handing out the Evernew by I

himself from his company shares to other ancl iris position of CEO' Oirectorst'lps at the' cornpany to give the appearance that employees of the comp.iiny * to c1o with the time ol the scam ftt rl^a 'l"tni* *:: was pur€ camouflage " the scam. This howevet :ii .' behind the scam i

in Evernesr view he was the mastermind during: in charge of Evernew before, who remained fully firstly its de He was and remalned and afte.r tt'" =tt*' This is evidqn-t dtorio' it" at facto head' jure head and later Dvcrtcrv's bt-ult power to operate the fact that he still had o' tnu monies obtained illegally Accounts t"a *t'"ft rvas paid irrto department through the lnformation

and he had the power to operate Evernew Accounts which in whrch hll to companics le were thereafter transferred .l *r6Tm**In

I 5,i BStC

,ii: interest (IR P.32L-327 where he signs on behalf of, the Jilid.as Group which includes Evernew and Space. Cralt (pvt) Ltd'and in particular p.357 where he signs orr bchall' of Space. Craft) or his personal account and everr signs cheques from the company account (p,339 anci 341 IR) which would not be the case if he had nothirrg rnore to c1o with the company. The record reveals that he *r= .r", signing contracts on behalf of the company after he allegedly left it.(see IR p.327 ancl 333)ln this regar.cl the follorving banking cletails of Evernew which have not been clisputecl are of significance as set out below;

Operation of Evernew's Accounts Sr. Account Title of Bank / Branch Ope rated Amoutrt qreditcd No Number Accgunt by received from Infornrati-on departrne-nt (Rs.)

1 oo24- Evernerv Silk Bzurk Inam 7 ,736,239 ,96/0 200222 Concepts Allama Iqba,t Akbar 8s03 Pvt Town Branch Limited Lahore 603- Ewernew Sindh Bank fnam 1,634,O89,141 08192 I Concepts DHA "Y" Block Akbar - 100 Pvt Branch Limited Lahore ll '2004- Evernew Balk Islami Muham 37 I ,785,225 03477a Concepts Circular Road rnad 8-0001 R t Limitecl Br:urch Hanif Lahore and Asim Amir Kh:rn Sikarndar .i I250- Evernerv HBL Walton Muham- 4t2,47 r,350 790083 Concepts Road Branch mad 95-55 Pvt Limited Hanif and Asim Amir I{han Sikandar Total Amount 4 154,585 67{)

105.Apart frorn his operation of Evernewls Bank accounts' (despite him allegedly having nothing to do with the company any more) the banking details of Evernelv also reveal that a large amount receivecl from the Information Department-schm''' and paicl into Evernew's bank account oper:ated by hirn rvas sllbsequently transierrecl into accoLints of other companies of rvhich the petitioner Inam Akbar was closely lin [<ecl beir r i

I

lo

owner/ proprietor or Director or shareholder for example M/S Mictas Pvt Ltc1, M/S Space Cra-Ft Pvt Ltd, M/S Rohi Enterprises, M/S Central Media Network Pvt Ltcl zur cl evcn his own personal account as shown bv the follou'ing- tables set oLrt below;

Transactions from the A/c No. 6O3-O8 t92 t-lOO titte as flvcrnerv Conce Pwt Ltd Sindh Bank loc k Bratch Lahorc ' S I)escriotion Datc.l Amouut(Rs.) Favoring No.

1 Cheque 27.01.:014 1 5.000.0011 Nti(las R't Pvt No.10624544

CI-reque 25.02.2014 100,000.000 tvliclars Pvt Ltd.

No. 101 I B78I 30.05.2014 5,400,000 i\4rclas Pvt Lt cl J Cheque No.10930284 :l 13,08.2014 10.500,0(r0 lvlidas Brt Ltcl Cheque No. 10930316 15.08.2014 34,500,000 Miclas Pvt Pvt. 5 Cheque No.10930 i38 40,000,000 Space Crarf-t 5 Cheque 20.08.2014 Cra,ft Pvt Ltcl No.10930322 7 Cheque 2I.08,2014 232,500,000 Spuc" Craft Fvt. Pvt. LIct. .- No. iog:oszs 27 .l I .',)o 14 58,255,00{.1 Space Cr:rf[ 8 Cheqlre Pvt. Ltcl.

No. 10948913

Title as Itrvernerv Transactions from the A/c No'oo24-2oa222a3o3 Branch Lahore Concepts Pvt Ltd Silk Bank Allama Iqbal Town Dated ArnorLnt(Rs.) Favorirlg S Descnptron No.

10.03.2015 5,000,000 Iram i Cheque Akbar.

No.07l1o74 l ro,ooo,ooo Spnce Craft Cheque 13.05,2015 Pvt. Ltd.

No.2O 147 422 120,000,cr00 Spacc CrsJt Cheqtte 13.05.20 i 5 :_l P",'t. Ltd.

No.2147421 120,000,00 o Sptrce rJ rtrlt 4 Cheque 13.05.20 t5 R't Lrd.

No.2147420 5o,ooo,ooo Central J Cheque os.tt.zor+ Media No.9896185 Netrvork Pvt Ltd 150,000,0 tI0 Inam 5 Cheqrre 26 .l t.2A 14

No.071 1032 I Akb*t '- Cheqtre t7 .o9 .2014 18,700,o00 NI icla s Pvt No.98 19081 Lrd ,l Cheque 13.08.2014 50,000,000 Evernew

I

No9.9819058 Concepts FVt.

9 Cheqr"te 13.08.2014 80,000,000 Evernew No.9819059 Concepts Pvt. .- 10 Cheque 24.07 .20 t4 48,700,000 Space Craft No.9896181 Pvt Lt.l.

Transactions from the A/c No. 20040567 7 aBOO O I Title as Everneu, Co;rcept F\,t Ltd maintained at Bank Islamic Circular Ro:rd Branch, Lahore S Description D;rted Amount(Rs. ) Favoring No

11.Cheque 06.10,2015 40,750,000 Everttcrv No.12169804 C once pr ts Pvt Ltd Cheque 06.0 r.2015 40,000,000 Central No.12 169802 Meelia Network Pvt Lrd.

12.Cheque 06.0 r.2015 38,000,000 Spacc Craft No.12166805 Pvt Ltd, - '-

13.Cheqne 05.01.2015 50,000,000 Roi.r i No. 12169801 En tertain- ment 14 Cheque 18.02.2015 25,000,000 Evemelv No. 12166806 Concepts Pvt 15, Cheque I9.02.2015 5,O00,000 Ev€rnew Concepts- No. 12 169807 Pvt 16 Cheque t9.02.20t5 20,000,000 Cen tra,l No. 12169809 Medizi Network Pvt Ltcl L7. Cheque 19.02.2015 s0,000,000 Rohi Entertainm No,12169808 ent Chequc 18.03.20I5 27 ,700,OOO Sptri:c Craft Pvt Ltd.. .-- No.i2169816 19 Cheque 24.03.2015 85,500,000 Inam Akbar No. 12 169818

106.Thus, with respect to petitioner No.7 Inam Akbar rve find that there has been no malafides on the part of the NAB against him and that there is prima facie sufllcient material i on recorcl to connect him with the offense fbr which he has t/.

t4.^

..'.i${df ix zll . lij :; been chargeci alcl a-s sutch hts pre 'rr-lest t';til rs i ec'rllecl tvtttl i rmrnecir..r te eliect

107.Turning to the case of petitioner .No'B Riaz Murtir rvho was CEO of Evernerv at the time of the scarn' lVe hilve aireadv lb r,tr-rcl that thele rvere tinges o[ nti'r'iaftde llv NAB til urcluchng htm ttr tire relererrce as NAB had rt'seli coticeclecl tir para 9 ,tf the reference that he halcl ltttle ttr clrr r-'ttlr th'' s' lrttL '*vhrch '.vas or:chestratecl b)/ petitloller No 7 Ilrltrtl rtl ll'rt-'l'l rr: t ' ev1clellt fronr para 9 of the reference r'vhtch r" l'ts t e pt-oclrtcecl ai-rove rn the case of lnam Al<bar

flrilL IOS. With legarcl lo petltloner Rlaz Nltttrtr's contelltlotl the company s1-ror-Licl have been the accttseci ttl 1he re lei cttt;e ancL not the Dlrectors of that compan-v r't"e Iltrcl 'Iu 'rrll)5talr(r rn this contentton. TiIs rs because ttre NAO IS tr speclal la11rl lvrth overricitng effect bl' '"11'1ttt of S'3 NAO Fr trlhettn':t e' tn

recent tlrnes lt has beelr held b1' the Slrpi-emc: C.lrrt ttr thc .-ase of Syecl Mushahid Shah V FIA (20 17 SCMR L?18) ttrat lh'" lvhen trr.'o special Laws confltct then gcner irliv s1:''al-'trr11 speclal lan' later rn trme i,vr1l prevail keepurg lll vlL- r'\r l'1it' obl'- cf

Jrllrpose ailci policv of Lroth statl-ttes Thtls stnce rve clo uot tLirne tll2111 tlle ccnsrder'that any other speclal slatute lalct- tn f pose alt''i iroltt"' 'r ""1 I'JAO h-as sLrch ttn r lpol'tltllt ob.]ect' pr-tl r.vr11 prevtrtl ov!- r ol-lt rlt the Preatnble to the NAO the i,1AO ove r. th(,sL_ other sPectal statutes belore tt ancl Probabi]' the a1";r,t111on rlf pa-ssecl after rt irnp or: talltlv lir the NAO the followrtrg "persoll" at S.5 to) NAO rs clearly szucl to urclude lar'v reltecl t-tpon b'l' as set oll.t belorv ancl hence t'he cases le petLtlonei-I\o.E in thts reg.'rrcl are clistingr-rr-strab *a ( tnt 'Person' r-tnless the c''nlei:l- (-rL11rlr \\ I5t' r() ,,1::.,.;'" irrcludes in the case of corrlpan]'--or' '' Chairrnarr' Chir-'i' body corpor^t:: ."_1:], 'ot"o'"' Dircctor., Eteclc,l Dxccutive, Managrn callccl' rtnr-i I)irectors, ily what#er namc ,.r,^.rrrtoi" oi tLt compa.ny :,1 :"::"jJi;l":i; i. .,.y one exercising dircctron coflrllarrl/"t-:"'::'i1.:

01'a i)c(i:r ;;.-';tft;;= of such anrcl it.r the crtse oi ;\1r-' lrt t

.;;p";;;; 1"e-

.rr*:.n*

''-. i i:i;,,]i i3.{Ti'i*f.$Ff]l;+H"q;HSBratr#BF';liFrrrx!1ir'iri';?L-l r" flJ*M

BAa

partnership or soie proprietorship, the partners, proprietor or anv person having any interest in the said firm, partnership or proprietorship concern or direction or controtr thereof. (bolcl r:.clcled)

109.Thus, under the NAO petitioner Riaz Munir can be proceecled with in his capacity as CEO of Evernew.

I

i 10. With regard to his contention that NAB should have formed a JIT we find this contention to be bf no sLtbstance as ' it is the prerogative of the Chairman NAB r-rncler the NAO to'' carry oltt an inquiry/investigation in any rtanner prescribed ;

in the NAO in his cliscretion alcl he does not have to nia.l<e a JIT for the purpose. Likewise the conter-rtidn that a forensic audit should have been carried out is of no substance. '[his may be done at the discretion of the Chairman NAB.keeping in view the costs involved, the complexity ol lhe matter and , the time taken. On a brief review oFthe material before us the., loss calculated by the NAB and the method of calculation .

both appear to be reasonable. It will be open to the petitioner at trial, if so aclvised, to challenge sueh method of calculation I and amount of ioss by cross examining l-h.e relevant PW'i at trial or challenging the clocuments. reliecl upon by NAB vis a ' vis the calculation or putting forwarcl his own calcttlation of ' Ioss (if any) through any defense witness which he may choose to call.

II1. lt wor-rlcl appea-r however, from tl-re materizrl on recorcl ; , ' that petitioner No.8 Riaz Munir was the fall guy who was left , behind after petitioner Inam Akbar had cievdrly allegedly left' the company and was left to carry the baby' He was I transferred the minimum number of shares by Inam Akbar , was (1.1%) to enable him to be lawfully appointed as CEO' H'e ' CEO for a very limited period yet he had no power to operate i

power to the bank accounts, no power to sign cheques' no

L

ancl to execllte agreements, received no monies from the sceun ' all intents ancl purposes was a "clummy" CEA '' ?l

. -- . ri.6,. ,;, :i

3a1 d0

112.Thus, in our view, prima facie there is insu{tjcient material to connect him to the offense for ,,vhich he htis b<ien charged and his is a case of further inquiry ancl since rve harve atready found Linges of malafide in his case his pre arrest bail is confirmed on the sa-me terms and conditions.

113.Turning to the cases of petitioner No.1O Asim Amir Khan Sikander who was senior executive director of Evernew at the time of the scam, .We do not accept that as senior executive dir'ector that he was not a part of the scam. Crucially not only was he a part of the mangement of the company who wrote letters on behalf of Evernerv tq the Minister Information (petitioner No. i) in cr-rnne,-:tioii '\vitl-r media campaigns by Evernew but he also, niore signif.icantiy, hac{ the power to operate its bank accounts, He has been given a specific role at para 11 of the reference which provides as under;

"The investigation report also sholvs that Accusect 'No.1i Muhammad Hanif r,r,as Compzury Secretary and Accused No.12 Asim Amir Khan Sihandar lvas Senior Executive Director of Everr:ew. Both the accused jointly operatecl ttre bank accounts of the company. Fr-trther, they actively connived r'vith Accused No.8, 9 and l0 as such aided ancl abetted as well as assisted them in trarisferring the critne proceeds. Both accusecl are eclualiy resllotrsible ior causing loss to national e;tchequer' Thel' alongr.vith icctised No'8, 9 and 1O are beneficiauy of il-iegal, overpriced and exortritzurtly invoiced receipts".

1 i4. He and co-accused petitioner No'9 Mohammed I{arrif had the power to oPerate Evernew's bank account ot fiat't* Islamic circular Road Branch Lahore to the exclusion of anyone else including petitioner Inam Akbar' The above reprocluced table in respect of Evernew's bank Accottnts ancl the power to operate the same clearly shows that petitioqer No.1O Asim Amir Khan Sikancler ancl petitioner" "No'9 Mohammed Hanif transferred monies from Evernew's bi'ull<

account at the aforesaid bralch to compan ies w'hich rvcr': Ii.tr r

A

:t:nected to Inam Akbar and even to the accor-inL of itrrun ,ikbar himself which they had no reason to do bearing in mind that'they knew that Inam Akbar was no longer a part of Everner.v ancl rvhen confrontecl they admittecl operating the bank accounts and making such transfers for which tirey had no explanation. Thus, in our view petitiorrers No,10 .Asim Amir Khan Sikander and petitioner No.9 Moharnmecl Hanif were knowing and willing accomplices of peti[ioner No.7 Inaru Akbar by transferring the ill gotten money illegally claimerl from the GOS from Evernew Bank accounts itrto Bafll( /\ccounts of companies in which Inarn Akbar iracl an iriterest and even into his personai account and thlrs in our view thire '. is prima facie sufficient materia_l,. on recorcl to connect petitioners No.10 Asim Amir Khan Sikander and petitioner' '

I

No.9 Mohammecl Hanil to the offense for which they have been charged and as surch their re arrest bail stancls reca-lled with immediate effect

115.The case of petitioner No.9.Mohammed Hanif who vras Company Secretary of Evernew at the time of the scam has been dealt with above a-1ong with the cas'e of petitioner No.10 Asim Amir Khan Sikander and for avoidarrce of dotrbt based ori the same consideralions mentioned in the case.of petitioner No.10 Asim Amar I(han Sikander.the pre an-est bail of Mohammecl Hanif stancls recalled with immediate effect.

I 16 . 'Iurning to the case of petitioner No. 14 Gulzar Ali tvho rvas a. Director of Adart at the time of the scam which only clealt with raclio commercials/ adverts as opposed t'o'T'V' As we have already discussecl with regard to the case of petitioner Riaz Munir the NAB under the NAO lvere empowerecl and had juriscliction to charge Gr'rlzar Ahmed as a Director of Aclart. Apart from his general role of:over invoicing in the reference he has been given a specific role in.-the relerence at pala 13 rvhich reacls as ltnder:

"As per investigation report Accnsecl No' 14 Gulzar 'satman Ali and Accusecl No.15 Mansoor are both .l Directors of aclvertising agency M/s' Adart I(arachi' F-r

3o3 6l

Pvt. Ltcl. (Aclart) rvhich has receivecl Rs 317 Million from Sindh Information Departnrent, agAlnst release of aclvertisement camparigirs on Electrorric Media (FM). The Accused No.14 'used to opera'te the account of the company anci is its majol' shareholder, whereas the Accused No'15 being Director actecl in connivance .with the olher accused persons which restrlted into loss to the national exchequer to the tune ol Rs.229,536,413/- by subrnitting bogus bills.-rvittr ' fake transmissir:n certificates ancl also billecl excessiveiy / exorbita:rtlY".

I 17. He was a Director of Adart tlrroughout the ref'erenc:e period; he rr.'as a majority shareholder of Aclart; he signed agreements on behalf of Aclart; he operated bank accounts on behaif of Adart and, as cala be seen by the table below"he illega11y massively overcharged the GOS for rvorlis carried ourt

by his illegal sub contractors lbaity tt,,lithn and Meclia Power).He has not been able Lo procluce a single invoice or

other clocr-rment in support of his contention that Aclart only chargecl 1 57o commission ancl contrary to his contention Adart ancl its illegal sr:blettess cieducted far more than i5%' lvhich commission as is shown by the table reprocluced below shorvs how mr-rch loss Adart causecl to the nationai exchequer. Fake invoices of Adart ancl over billing can be for-rncl at P..28g,2gL,30i, 309,3i1 of the IR' Such illegzrlity and loss is further bolstered by the fact that' Adatt' attempted to enter into a VR with NAB which according to them was on account of the IO "twisting their arm"" Their argument however of coercion by the IO is totally '

trelied by the fact that NAB did not accept their

VR' I

Aclar-t's letter to NAB clated 2O-ll-2O15 requesting 1 yS iu.'

this court at I

attached lvith Adart's CP No'3286/ 16 filed before Annex D. In fact so desperate were Adart to enterin lo a VR '

and thereby admit their guilt that they even filed :

a ciirection that NAB CP.No.3286/ 16 before this court seeking petition which 'r'trs accept their VR at prayer clause €i ol the l dismissed .bY this court'

Adart Bank Accounts v^

E==-

3o1

Actual Differeoce S Channel ( FM} Amount loss to received invoice No.

from Govt' amount of national by the the Channel exchequer Rs. Rs.O A en Rs 115,197,183 z,ost,oeo 1 1,5181, 3A2 1 Hot FM 105 Network 997,672 29,t62,1o 6 2 Jeay FM 88 29,336,20 0 Network 1,234,o44 44,738,949 PM 100 45,673,o3 3

Pakistan 204,764 19,89O,6 a6 FM 104 20,o95,45 0

Ka shmore Fake TCs 20,563,2 50 5 Josh FM 99 20,563,25 0 Karachi H q,qg+,rco 229,536,413 of Adart illustrates weil the

118.In our view the case of this ' entire scam as we shall complete farce and illegality on the as foilows' Adart allegedly were short iisted highlight parrel due to their vast experience GOS advertising agency expertise in ttre field of advertising' It was then atlegedly and that it various presentations able to convince the GOS a-fter ability and expertise over and above any had the capacity, a first rate advertisement other adverting agency to conduct a contract by the GOS' Based on campaign if it was awarded the GOS awarded it the relevalt advertising all these factors vast expense' So u'hat does Adart then do? Does campaign at ituseitsexperienceandexpertisetocarryoutafirstrate carnpaign on behalf of the GOS as it had advertising if it was awa-rded the contract a-fter its undertaken to do breaking presentation"' various wondrous and ground -)-: sublets the entire contract of the campalgn Instead it iliegatiy Power man bands (Daily Milan and M/S Media to two one are sole proprietorships) which are not on both of which Link-"Or-ttd panel of advertisers for the GOS' Even then ,n" Ad'art's agreement rvith these two one man quite incredibly l= verbal with nothing in writing' No approval was U.rra" GOS to sublet its advertising sought by Adart from the to another entity which was not on the GOS's contract makes a complete mockery of approved panel which 'n-t ' Policy' *t"'',, whole concept of the Ruies' the Advertisement

I 64

3cs- E-

in the newspapers' pre transparency, the need to advertise quaiifY etc'

before us we are f1im1

119.Thus, based on the material material to connect facie of the view that'there is sufficient for which he has petitioner No,14 Gulzar Ali to the offense effect' be"r, and hereby recali his bail with immediate "harg"d

120.Turning to the case of petitioner No' 13 Salman Mansoor who was a Director of Adart at the time of the We have seen from the record that he wrote directly to scam.

capacity as Media ttre Minister (petitioner No.1) in his for Adart on a number of occasions For example' on Manager campaign- in order to raise 28.05.2014 in respect of media on 29 'O5 '2014 in connection awareness of child marriage Bill' order situation in with media campaign to combat law and Sindh,on06-06-2014inrespectofmediacampaignfor awarenessofwomenandchildprotectionBillwhicha]l that he had a number of meetings with the indicate Ministerandwasfullyinvolvedintheprocurementof he

619)More importantly business for Adart.(IR P'605,612, manager massively illegal1y signed in his capacity as media 9500 per minute for the inflated invoices at RS 6000 and RadioadvertswhichhehadillegallysublettoeitherMilanor Powerlinkwhohadbeenchargedbytheradiostationamuch discussed below in the cases of Umer Shezade lower rate as Power) all of which were (Milan) and Syed Naveed (Media and paid in connivance with the Government official approved whose signatures are on the petitioners named in this order orders (IR 605 to 611' 612 lo 6tB' 619'624)' For release which he sent to the Minister example, just one of the letters is set out below for ease of reference: Adarts xilacni (P"Q t-ilnited A, Sindhi Muslim Housing Azavam Plaza (4th lloor) 3- Pakistan Socletr', Share Faisal' Kar achi-7400, Fax-34 558474 Phone 3455277 3, 3455 L4 83,34552427 comai) E-mai 1: a rl ka C

To, Datedt 29 l5l 14 The Minister, Government of Sindh

J

3oe t

I

t:

Karachi.

Subject:

Respected Sir' Re uest o rE

As Per our ctroni

--- dlscussro[ "scussion in Me

Lutt meeting' ru the iaC m at nA

attacheil the suirmary of media plan regalding r'!e!'r''

Si."i.""i" M"aia (FM liadioJ to "ot'ib't lawtoancl order kindly val

Please Iind ''Campargn situation aPprove on in the Sindh" in this regards yo' J" requested process' r""Ji" pf"" for tf,e reliase ordet and for fulther We hope to have a long-term -b^usiness relationship Sindh- - with Information'Department Govemment of(bolci Thanking you in anticipation added) sd/- Media Manager (sAlMAN MANSOOR)"

the Minister

121.The media plan was illegally approved by (petitioner No. 1) as were the massively inflated invoices

provided under the signature of petitioner No' 13' As such we No' 13 Salman completely reject the stance of petitioner Mansoor that he played virtua-lly no role in Adart being awarded advertising contracts from the Information paid for massively Department GOS and claiming and being above reveals that over inflated bills' The material referred to the GOS along he played a full part in il1egally over billing Ali' TheY with his Adart Director petitioner No' 14 Gulazar Gulazar Aii were partners in crime; whiist petitioner No.14 was in the engine room dealing with the illegal sub petitioner No' 13 contracting arrd operating the bank accounts who was attending Salman Mansoor was the "face" of Adart :

al1 the meetings with the Minister and other officials of the j

contracts Information department to ensure that adr"ertising i massively inflated were awarded to Adart and that the illegally of{icials of bills of Adart were paid in connivance with the that prima facie Information department GOS' Thus' we find connect the petitioner there is sufficient materia'l on record to his .to the offense for which he has been charged and as such effect' pre arrest bail is recalled with immediate u,

f

E__:

t

122.T:urrrirrg to the case of petitioner No' 14 Umer Shezade who was Proprietor of Daily Milan at the tlme of the scam lvho n'as rltegaJly sublet a part of the work by Adart'

123.In addition to his general role of suppresslng invorces he along r,vrth petitioner No.15 Syed Naveed ha'.'e been gtven a speciflc role at para 74 of the reference which t eads as under;

"74.IL rs also transprres from investigation report that Accused No.16 Umar Shahzad rs Proprietor of Darly Mrlal, and Accused No'17 Syed Naveed is Proprietor of N{edia Por'ver Link, s'ho carrted out advertisement campaigns rn Electronic Medra on beha-lf of accused No. 14 and 15 and as such received a-rnounts of Rs'124,O3I ,247 I - and Rs 121,955,632/- respectively in their accounts from Accused No. 14, They have connived wtth accused No.14 and 15 in submissron of fake ard forged rnvoices and transmissron certificates and also billed excessively / exorbitantly and as such they are jorntll' and severally liable with the other accused Persons".

l24.PetttionerNo.14UmerShezade\vasallrllegalsubletee of Adart. He was not on the GOS pre qualifieci list of approved advertisers. By hls o\\'n admisston he established his business in 20 13 and hrs first contract r'r'as the one in this case given to him by Adart. By hrs orvn admlsston he had no prior expertlse or experience in advertrstng He could not produce any corporate or other documents as to how the entity Daily Milan had come lnto existence' He could not produce any invorce r,r'hich he had given to anl'radto station' The invorce was glven to Adart and he received 3oA commission. From the above rn ot-tr vle1v lt rs apparent that petrtioner No.15 Umer shezade r,vas rl1ega11y favored and given a verba-l contract by Adart rvhrch simplv enabled him to cause losstotheGosandbenefittohimself.Itmal,becorrectthat r:o Adart's bills to Adart rvas primarily responsible b1' pointrng the GOS rvhich \r'ere massivelfinflated bu1 this passing on loss) cannot the blame (rnterestingll' Adart blamed him for the him of his os'n criminal liability The fact that he gave absolve no invoice to arry radro station and there 1s no material on

- record to show that he negotlated competltlve rates lvith the w <1 fl

u

6't

radio stations shows he has connived with Adart in causing a massive loss to the GOS.Furthermore', the record shows that the S.161 Statement of Qazr Mateen is of no assistance to him 0R 275).FM Radio 100's letter (IR P'2771 to NAB'by Qazi Mateen simply says that TC's were given to Umer Shezade which he was unable to produce arrd that an amount was also received from him' A perusal of the verification certificate (lRP.2237 shows that he was charged RS4OO per minute by FM 100, a number of invoices were fa'ke, and evpn otherwise he was charging Adart RS 5,000 per minute which was a massively over inflated bill (IR 109 Bill dated 07-02-2009)' Likewise 5.161 Statement of Muhammed Feroze Alam of FM 104 Kashmore (IR P.2g5\; Kashmore's letter dated 01-04- per 2016 0R 297) Kashmore charging Umei Shezade RS 200 min (lR 2293\, and Adarts charging GOS RS 3000 per min

(IR

00000111) which were massiveiy over inflated bilis by both

parties. Other such examples are a-lso' present on the record' Thus, Umer Shezade was over charging Adart massively ald Adart were again over charging the GOS massively on top of

the amount which Umer Shezade had already overcharged' Thus in our view there is prima facie sufficient material on he has been record to connect him with the offense for lr'hich charged and as such his interirn pre arrest bail is recalled

with immediate effect.

125.Turning to the case of petitioner No'15 Syed Naveed the scam who was Proprietor of Media Power at thc time of was given a r,vho along with Petitioner No'14 Umer Shezade specific role as mentioned in para 14 oI the reference as the same boat reproduced above. We find that he is saiiing in aSpetitionerNo.14andthesameconsiderationsapplytohim as to petitioner No.14 (in this respect reference is made to

BB (IRP'2777\'

5.161 Statement of Mr'Jawed Ahmed of FM 400 and RS 950 fake transmission certilicates alcl rates of RS Media Power's charged to the FM station (\R 2!g-2gtl and charged to Adart (IR invoice of RS 600o per minute which was as a 00000104) which shows the alleged commission k, t I

I

68 3o were massively over billing Adart complete subterfuge as they whichmadeineffecttherepercentagemorelike2SVo,w]ni,hits then again massively overcharged when it submitted Adart Agaih there is more such material on record) bill to the GOS.

is prima facie sufficient material on Thus, in our view there been him with the offense for which he has record to connect his pre a-rrest bail is also recalled with charged and as such immediate effect'

SUMMARY'

with immediate effect in respect Pre arrest bail is recalled of:

(Petitioner No'1)

1.Sharjeel Inam Memon

2.Zulfiqar Ali Sha-tlwani (Petitioner No-'-2) 'r."*:;l;; nn*'Jn'ip'it (Petitioner No'3) ^' No a) 4 \ rlhammad Yousul Kaboro (Petitioner ;. ;#;;il* cr'u'aio (Petitioner No'5)' No'6) i. arr"iri"="ain Memon (Petitioner ;. i;; Akbar (Petitioner No'7)' No e) i. iii;;;;;o Hanif (Petitioner (Petitioner I::' ot' ;. ;=;;;t; Khan sit<andar ib:#i *;"ooJ n""r'*i (Petitioner No'11)' No 12) ii. clrr* Ali (Petitioner (Petitioner No'i3)' i;. ;;;; Mansoor is. u;"rGhezade lPeiitionerNoNo i;.#;N;"ted (Petitioner on the same terms and Pre arrest bail is conlirmed conditions to;

Riaz Munir (Petitioner No

B)

for our short order dated

126.These are the reasons

NAB'

of this order shall be sent to the Chairman 127. AcoPY Judge Karachi and Sukkur and the Aclministrative DG's NAB of Courts Sindh wi th resPect to the ParagraPhs AccountabilitY relate to them for information and this order which implementation lvhere required' ;r CHItr JU [qla ffi l

I

3to

t ORDER SHEET IN THE HIGH COURT OIi SINDH, KARACHI C. P No. D-3397,3907,3958,59sl OF 2els C. P No. D 3133, 3151, 3157, 5052,5377, \

5378, 5379,5393 & 5668 OF 2016 \

& c.P.D- 1955 C)F 2017

Date Order .with signature ol Judge

23.10.20t7 Mr. Anie.r Raza Naqvi Advocate alongwitlr Petitioner Zulfiqar Ali in C'P' No. D- 3397/2015 a;d Petitioner Sharjeel lnan Memon in D-195512017 Mr. Shahab Sarki Advocate for Petitioner in C P, No. D- 1955/2017 Syed Mehmood AIam Rizvi Advocate alongwith Petitionel in C'P No D- 3go7l2ot5 M/s. Muhammad Wasif Riaz and Zubair Ahmed Rajput Advocates alongwith Petitioner in C.P. No D- 390712015,3133/2016 and D- 3958120ts Muhamn'rad Mansoor Mir Advocate alongwith Petitioners in C P No' D- 59 5 | l20l 5 and 3 I 57 120 | 5

Mr. Wasiq Ahmed Kehar Advocate alongwith Petiti6ner in C P No' D- 31 5l l20l 6 and 3958/20 I 5

M/s. Khalid Jawed Khan Advocate alongwith Petitioner in C'P No' D- s05212016

Mt'. Manzool Hussaiu Khoso Advocate alongwitlr Petitioner5 in C P' No' D - 537 7 /20 1 6, 537 8 t201 6 and 537 9 t20 1 6 I Mr. Hummul Zubedi Advocate alongwith Petitioner in C P No D-

I

I

M/s. Azhar Siddiqui Advocate in C.P. No. D- 5668/2016, Inam Akbar' Petitioner No.l called absent.

Mr. S. M. Iqbal Advocate alongwith Riaz Munir-Petitioner No'2 in C'P' E No. D- 5668/2016 Mr. Yaseen Azad Advocate alongwith Petitioners in C'P' No' D- Mr. Mulran-rmad Altaf, Speciai Prosecutol' NAB, Munsif Jan' Special Prosecutor NAB alongwith lnvestigating Officer Asif Raza Mr. Abid Naseem Advocale for PBA in C P. No' D- 5668/2016 Mr. Saeed A. Memon, Assistant Attorney General for Pakistan Even Petitioner No.l Inam Akbar in C.P No' D- 5668/20,I6 called absent .

on I 1.10.2017 and 18' 10.2017 he was also absent' For the reasons to be recorded later on, the orcler dated l1'06'2015 in C P'

dated No. D- 3397/2015, order dated 01.07.2015 in C.P. No' D- 390712015' order 03.07.2015 in C.P. No D- 3958/2015, Order dated 23'09'2015 in C'P No' D-

5g5ll2}l5, Orders dated 30'05.2016 in C.P No' D- 3l3l/2016' C.P No' D- 315112016 and C.P. No. D- 3157/2016, Order dated 16 09 2016 in C P' No' D- 1 I

J+

Y'

l\ C'P' No' D- 505212016, Orders dated 04.10.2016 in C'P No D- 537112016' t 5378/2016, and C,P. No. D- 5379/2016' Order dated 05 10 2016 in C'P No D-

and Order dated 539312016, order dated 19.10.2016 in c.P. No, D- 566812016 30'03,2017inC'P,No'D-|g55t2o|T,wherebyPetitionerswet.egrantedad. pre arrest bail interim pre arrest bail stand recalled However, earlier ad-interinr 2016 passed in C P' granted to Riaz Munir-Petitioner No'2 vide order dated 19 10 No. D- 5668/2016 stands confirmed on same terms un. "ot."lo**#rra, ci

J-