2006 PLP 836 (YLR)

TANVIR BASHIR ANSARI, J.

This common judgment shall decide Writ Petition No.2660 of 2003, Writ Petition No.216 of 2004 and Writ Petition No.2533 of 2003 which have been filed in NAB Reference No.86 of 2003 titled The State v. Sher Akbar and 5 others. The said reference is pending before the Accountability Court No.4, Rawalpindi/ Islamabad.

2. All the three petitioners pray for being released on bail till the final disposal of the case. Charge was framed against the following six (6) accused:-- (i) Sher Akbar son of Muhammad Akbar Exh.D.G. National Training Bureau, Islamabad. (ii) Syed Safdar Hussain Kazmi Secretary, (Rtd.) Ministry of Labour and Manpower, Islamabad. (iii) Saleem Maqsood ex-Joint Secretary, Ministry of Labour and Manpower, Islamabad. (iv) Mukhtar Ahmad ex-Financial Advisor, Ministry of Labour and Manpower, Islamabad. (v) Muhammad Hussain Shah Deputy Secretary, (Rtd.) Ministry of Labour and Manpower, Islamabad. (vi) Syed Anwar Shah Proprietor, Thamoor Construction Company, Quetta.

3. The brief background of the reference is that National Training Bureau, which is an attached Department of Manpower Division of Federal Government launched a crash training programme in 1976 to train the unskilled labour. In 1981, as expansion of the project was planned in two phases. In phase I, it was decided to regulate and promote National Training Programme throughout the country while under Phase-II of the Project, the NTB was to establish Vocational Training Centres (VTC) in the Provinces. The Ministry of Labour and Manpower restructured the project and in March, 1993 approved the construction of 21 VTCs including the V.T.C. at Dera Murad Jamali. It is this Vocational Training Centre at Dera Murad Jamali which is the subject-matter of NAB Reference No.86 of 2003. The precise allegations against the petitioner is as under:-- (i) That Muhammad Hussain Shah the then Deputy Secretary, Ministry of Labour and Manpower in connivance with Sher Akbar D.G., N.T.B. dishonestly awarded the contract of V.T.C. Dera Murad Jamali to M/s. Thamoor Construction Company of Syed Anwar Shah accused at a composite rate of rupees 536 sq. ft. which was on higher than the rates of other sites of the same scheme. It is alleged that the completion cost of rupees 24.92 million was contemplated as against the estimated cost of rupees 9.3 million. (ii) That Syed Anwar Shah moved Sher Akbar D.G., N.T.B. for appointment of an arbitrator for settlement of his escalation claim whereupon Muhammad Hussain Shah was appointed as the sole arbitrator. It is further alleged that Muhammad Hussain Shah in collusion with accused Sher Akbar and Asad-bin-Zafar Approver delivered an award of rupees 6.48 million which, after having been made as the rule of the Court was paid to Syed Anwar Shah.

4. The allegations against Mukhtar Ahmed ex-Financial Advisor along with Sher Akbar D.G., N.T.B. and petitioner Saleem Maqsood Joint Secretary were the Members of Escalation Committee and had dishonestly and in violation of the directive of the Minister of State, recommended the payment of rupees 7.81 million as escalation cost to accused Syed Anwar Shah.

5. The allegations against the third petitioner namely Saleem Maqsood Joint Secretary, Ministry of Labour and Manpower are that he was the Chairman, Escalation Committee who along with the accused Sher Akbar D.G. and accused Mukhtar Ahmad Financial Advisor dishonestly recommended the payment of rupees 7.81 million as escalation cost to accused Syed Anwar Shah.

6. Dr. Babar Awan, Advocate for Muhammad Hussain Shah petitioner contends that there is nothing on the record to establish any mens rea qua the petitioner as far as the allegation of the initial award of the contract is concerned. It is submitted that the tenders for construction of V.T.C. Dera Murad Jamali were opened on 29-12-1988. The acceptance of tender and award of work was made on 2-1-1990 but the same does not show any complicity of the petitioners. Further there is no direct evidence against the petitioner that he was instrumental in the approval of the contract as according to letter dated 27-5-1989 the award of the said contract was considered at various levels including the approval of the Chairman, ECUEC. It is submitted that so many different senior officials had considered the award of the contract that it is not reasonable to infer that each and every officer had colluded to deliberately grant illegal benefit to a contractor.

7. Regarding the allegations that Muhammad Hussain Shah petitioner was appointed as sole arbitrator who also Submitted his award whereby the escalation charges were allowed to the contractor, it is contended that firstly, the proceedings of arbitrator are subject to and governed by the provisions of the Arbitrator Act, 1940. The arbitrator proceedings were detailed and long drawn out proceedings, wherein, the government had been fully represented through its representatives. The petitioner had fulfilled all the requirements of law and recorded copious evidence and then submitted his award to the Court of competent jurisdiction. Objections were filed against the said award. The award would be a dead letter had it not been reduced into a rule of the Court and a decree was passed in accordance with award. It is further submitted that even as per the statement of the approver, it was this approver who had communicated to the Ministry of Law that N.T.B. was satisfied with the award.

8. On the other hand, the learned A.D.P.G.A., NAB submits that the charge has long been framed and that any observation made by this Court at this stage might prejudice the case of either party before the Accountability Court. It is emphasized that Asad-bin-Zafar Approver had recorded his statement under section 164, Cr.P.C. before a Judicial Magistrate Rawalpindi after having been duly warned and that such statement fully implicate this petitioner. The learned A.D.F.G.A., NAB has also submitted that under section 26 of the NAB Ordinance, 1999, the Chairman, NAB is fully authorized to grant pardon to any person who is supposed to have been directly or indirectly concerned with the offence subject to the condition that such a person makes a full disclosure of the entire circumstances. It is submitted that it was in pursuance of this provision of law that the statement of Asad-bin-Zafar was recorded by the Magistrate.

9. After hearing both the parties and without commenting upon the merits of the case, suffice it to say that the charge against Muhammad Hussain Shah petitioner on both counts cannot be proved unless and until substantial evidence is brought on the record. The efficacy of the statement of an approver depends upon the circumstances of each case and no implicit faith can be reposed in such a statement till such time that the said statement is put to test in accordance with law. The other charge against Muhammad Hussain Shah petitioner that he is sole arbitrator proceeded to dishonestly award the escalated amount to the contractor, cannot be decided without referring to the circumstances which led to the award to become rule of the Court. It is not denied that after making the award the same was submitted to the Court of competent Civil jurisdiction. It is also not disputed that initially objections were filed to the award. However, it was communicated by the approver to the Law Division that N.T.B. was satisfied with the arbitrator award. Consequently, a representative of the Government appeared before the Civil Court and the objections having not been pressed on the civil Court made the award as the rule of the Court. It is trite law that without the mechanism of the Arbitration Act, 1940, Arbitration Award remains ineffective till made rule of the Court and decree is passed accordingly.

10. All this clearly indicates that this is a case of further inquiry which cannot be decided one way or the other without recording of the detailed evidence by the prosecution. The petitioner Muhammad Hussain is allowed bail subject to furnishing of bail bonds in the sum of rupees 5 million with two sureties in the like amount to the satisfaction of the Accountability Court.

11. He petitioner in Writ Petition No.216 of 2004 is Mukhtar Ahmed who was the Member of the Escalation Committee which was headed by Saleem Maqsood petitioner in Writ Petition No.2533 of 2003. It is submitted on behalf of these two petitioners that no case whatsoever has been made out against them. It is submitted that neither of the said petitioners has caused any loss whatsoever to the National Exchequer. It is submitted that in case of both these petitioners, nothing substantial has been brought on the record in order to establish mens rea against them. It is further submitted that whether or not any offence has been committed as alleged a reference is made to the Finance Department Regulations Wing O.M. dated 30-9-1975 and Notification dated 3-6-1992, wherein, guidelines are provided. According to the learned counsel detailed guidelines have been provided for the grant of escalation and it has not been specifically alleged if the petitioners had violated any of the said guidelines. It is also emphasized that there is no rule of law that no escalation can be granted if it is not so provided in the original contract agreement. It has been taken note of in the Notification of 3-6-1992 that the lawful escalation charges are commensurate with the increase in the price of the constructional material which could not be contemplated when the original contract was signed.

12. On the other hand, the grant of bail has been opposed strenuously by the learned A.D.F.G.A., NAB who submits that the allegations against all the petitioners are of a very serious dimension and that the nature of the white collar crime is such that the detection of the offence is both very complex as well as technical. He urged that for this reason bail may not be allowed to the petitioner and that the Accountability Court be directed to conclude the trial expeditiously.

13. After hearing the learned counsel, it is found that the allegations against both these petitioners are identical. One was the Chairman while the other was a Member of the Escalation Committee. The legality of the proceedings of the Escalation Committee cannot be prejudged at this stage. Once it is found that in all Government contracts, the Finance Division has been recognizing the right of genuine escalation based upon an unforeseen increase in the building material, whether or not such escalation is commensurate with the actual rise in the prices or not is a case, of further inquiry.

14. In view of the foregoing Mukhtar Ahmed petitioner in Writ Petition 216 of 2004 and Saleem Maqsood petitioner in Writ Petition 2533 of 2003 are allowed bail subject to furnishing of bail bonds in the sum of rupees five million each with two sureties each in the like amount to the satisfaction of the Accountability Court. N.H.Q./G-180/L????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.