2002 PLP 1344 (MLD)

S. ALI ASLAM JAFRI, J.‑‑‑Applicant Jamil A. Durrani Coordinator of Progressive Engineers Company and Sheharyar Construction Company/Contractor of Quaid‑e‑Azam Plaza, Hyderabad, has been sent up alongwith co‑accused (i) Badar Alam Bachani, the then Chief Executive Officer, Cantonment Board, Hyderabad, (ii) Riaz‑ur- Rehman Hashmani, the then Director, Military Lands and Cantonments, Karachi Region, Karachi, and (iii) Col. (Rtd.) Aftab Ahmad, the then Station Commander, Cantonment Board, Hyderabad, to face his trial before the Administrative Judge Accountability Court, Sindh, Karachi, vide Accountability Reference No.35 of 2001 for causing substantial loss of Rs.7,00,00,000 (Rupees seven crores) to Cantonment Board, Hyderabad fraudulently and dishonestly through illegal and corrupt practices. The allegations against the applicant and his co‑accused are that while accused Badar Alam Bachani was posted as Cantonment Executive Officer, Hyderabad, he in connivance with above‑named co‑accused contrary to the rules of construction and in violation of law/instructions, awarded contracts of the projects (i) Quaid‑e‑Azam Plaza, Hyderabad, and (ii) 22 shops within the Cantonment Board, Hyderabad, situated at Thandi Sarak. By awarding the said contracts he committed various illegal acts and omission in collaboration and in connivance with the above‑named co‑accused all of them obtained illegal gain and caused illegal tremendous loss of about Rs.7,00,00,000 to the Government/ Cantonment Board through fraudulent and dishonest means. All the above‑named accused, as such, committed an offence under section 9 of the NAB Ordinance, 1999, which is punishable under section 10 of the said Ordinance for imprisonment for a term which may extend .to 14 years, or with fine or with both, and further liable for forfeiture of the assets and properties obtained through corruption and corrupt practices. It is the case of the prosecution that applicant Jamil A. Durrani is the beneficiary who in collusion with co‑accused/officials of the Cantonment Board, Hyderabad, caused loss of Rs.50,74,000 in respect of construction of basement and Rs.5,50,26,500 in respect of construction of Quaid-e‑Azam Shopping Centre, Hyderabad. It is further alleged that the applicant/accused illegally and unauthorisedly occupied excess land of the Cantonment Board measuring 3104 sq. ft. at his own anti raised construction thereon for his benefit. It is also alleged that he was managing accounts of two companies, namely, Messrs Progressive Engineers and Contractors and (ii) Messrs Sheharyar Construction Company and had been dealing with various banks in respect of the huge amounts collected from the purchasers of flats and shops. In order to evade the payment of income‑tax he managed a partnership‑deed showing female members of his family as well as some male members as partners in Progressive Engineers Company and by filing false returns caused huge loss to the Government exchequer. The work of the construction of Quaid‑e‑Azam Shopping Centre was assigned to him through negotiations instead of open auction and without calling any tenders and without obtaining sanction of the competent Authority as against the cost of construction of Rs.6,76,06,080 the flats/shops were sold by the contractor for Rs.12,76,,69,000. Thus, it will be seen that all accused in collusion with each other have committed an offence under section 9 of the NAB Ordinance, 1999. The applicant who is in custody has applied for bail. We have heard Mr. Nawab Mirza, learned counsel for the applicant and Mr. Dilawar Hussain, learned Additional D.P.G.A. for the State. Mr. Nawab Mirza has contended that the reference made against the applicant is without any substance and the prosecution has miserably failed to make out even a prima facie case against the applicant who has constructed the above‑named two projects with his own sources and has also paid a premium of Rs.1,44,07,860 to the Cantonment Board in addition to a monthly rent of Rs.35,000 per month. So far the use of excess land is concerned _the Cantonment Board has already charged an extra amount of Rs.32,64,104 from him and also increased the agreed monthly rent from Rs.35,000 to Rs.70,000. The work was carried out with the approval and sanction of Cantonment Board. According to the agreement the applicant was authorised by the Cantonment Board to recover goodwill from the tenants to be inducted in the said properties. The learned counsel has, therefore, argued that the applicant has not committed any such act which could make him liable for prosecution under section 9 of the NAB Ordinance, 1999, hence he is entitled to be released on bail: Mr. Dilawar Hussain, learned Additional Deputy Prosecutor -General Accountability, has opposed the prayer of the applicant and vehemently urged that substantial huge loss in millions has been caused to the Government/Cantonment Board, Hyderabad, through fraudulent means. The applicant/accused is one of the beneficiaries and the offence with which he has been charged has been committed in connivance with co‑accused, named above, as such no case for grant of bail is made out. In order to appreciate the contentions of the learned counsel for the applicants and the learned Additional D.P.G.A. and would like to examine section 9(a)(iv) of the NAB Ordinance which reads as under:‑‑ "9. Corruption and corrupt practices: ‑‑‑(a) A holder of public office, or any other persons, is said to commit or to have committed the offence of corruption and corrupt practices:‑‑ (i)‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (ii)‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (iii)‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (iv) if he by corrupt, dishonest or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable things, or pecuniary advantage." (Underlining is by us). NAB Ordinance is a special enactment for effective and speedy disposal of the cases involving corruption, corrupt practices, misuse/abuse of powers, misappropriation of property, kickbacks, commission and the matters connected and ancillary or incidental thereto. Under section 9 of the Ordinance, apart from holder of a public office any other person is said to commit or to have committed the offence of corruption and corrupt practices if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable things, or pecuniary advantage. The material collected by the prosecution, as is evident from the report of Investigating Officer Inspector Nazeer Ahmad Memon, Circle Officer, ACE, Mirpurkhas, prima facie, connects the applicant with the commission of the offence allegedly committed by him. Offences under the NAB Ordinance fall within the definition or white collar crimes where direct evidence is not usually available and the prosecution has to rely upon the circumstantial and other ancillary pieces of evidence. While considering the bail plea in such type of cases, the Court has to keep in view the material collected by the prosecution and all such aspects of the case relating to the nature of the offence and the manner in which it has been committed. Indeed, bail can be granted in NAB cases but only in appropriate cases where the Court comes to the conclusion that there are no reasonable grounds to believe that the accused/applicant has committed the alleged offence. We have taken into consideration the material collected by the prosecution and have also kept in view the attending circumstances of the case. A perusal of the report of Investigating Officer and the statements of the witnesses recorded during the investigation do not lead us to hold that there are no reasonable grounds to believe that the accused/applicant has not committed the alleged offence. We are, therefore, of the view that .at this stage, this bail application merits no consideration and is liable to be dismissed. By a short order, dated 13‑12‑2001 we had dismissed this bail application and these are the reasons for the same. N.H.Q./J‑41/K