2020 PLP 1370 (YLR)

Through this single order we proceed to decide the instant petition tilted 'Mian Muhammad Shahbaz Sharif v. N.A.B, etc.', as well as, connected Writ Petition No. 240528 of 2018 titled 'Fawad Hassan Fawad v. N.A.B, etc.', as both these petitions have arisen out of the same Accountability Reference No. 50 of 2018. Mian Muhammad Shahbaz Sharif and Fawad Hassan Fawad petitioners through these petitions seek their post arrest bails in the aforementioned reference.

2. As per contents of the reference, on 31.10.2017 a complaint was received by the Chairman, N.A.B. The said complaint was filed against the manage-ments of public sector companies. It was alleged that public money is being misappropriated and embezzled by the managements of the companies mentioned therein whereupon, the Chairman N.A.B delegated powers to the Director General, N.A.B, Lahore to authorize an inquiry against the Managements of public limited companies (public sector companies) within the province of Punjab. Accordingly inquiry No. 1(9)HQ/1826/ NAB-L was authorized on 15.11.2017. In the meanwhile another complaint dated 17.11.2017 against the management of Messrs Paragon City Private Limited and management of Public Land Development Company (PLDC) was received at N.A.B., Lahore. It was alleged therein that management of Messrs Paragon City Private Limited in connivance with the officials/officers of PLDC has illegally occupied/possessed the state land measuring 3100-kanals which was proposed for Ashiana Iqbal Lahore, a Project for poor and needy people. Accordingly, D.G N.A.B, Lahore authorized an inquiry against the management/officials/officers of Punjab Lahore Development Company (PLDC), management/owners of Messrs Lahore Casa Developers (J.V), officers/officials of Lahore Development Authority (LDA) and others vide letter No. l(9)HQ/ 18322/NAB-L on 10.01.2018. Later on, the said inquiry was upgraded into investigation vide letter No. 1(61)HQ/ 932/NAB-L dated 04.05.2018. During the inquiry, it transpired that prime responsibility of Punjab Land Development Company (PLDC) was to develop modern housing schemes for the low income group in the various districts of Punjab. PLDC initially developed housing schemes, namely, Ashiana Quaid, Lahore Ashiana Sahiwal and Ashianu Faisalabad. The said projects were completed under the government mode. PLDC planned to launch another housing scheme, namely, Ashiana Iqbal Lahore in the government mode and launched the said scheme in the year 2011-12. Land measuring 3100- kanals, approximately, situated at Barki Road, Lahore was given to PLDC by the Government of the Punjab. PLDC upon completion of open bidding process awarded contract for infrastructure development of Ashiana Iqbal, Lahore to the successful/lowest bidder, namely, M/s Ch. Abdul Latif and Sons, on 24.01.2013. Thereafter, mobilization advance of Rs.75 million approximately was issued to the said contractor. On 25.02.2013, Mian Muhammad Shahbaz Sharif petitioner, the then Chief Minister Punjab, illegally and unlawfully formed an Inquiry Committee headed by Mr. Tariq Bajwa, the then Finance Secretary, to review the whole process of tendering undertaken for infrastructure development for Ashiana Iqbal, Lahore. Inquiry Committee concluded that the bidding process was largely carried out as per PPRA Rules though there were some irregularities in it. Fawad Hassan Fawad petitioner was the then Secretary (Implementation) to the Chief Minister, Punjab and he called the then Project Director and the then Chief Executive Officer (C.E.O.) PLDC in his office and verbally directed them to cancel the contract. He also exerted undue pressure on them on the pretext that major violations have been committed in awarding the contract of Ashiana Iqbal, Lahore. The findings of the abovementioned Inquiry Committee were concealed from them by Fawad Hassan Fawad petitioner. Fawad Hassan Fawad petitioner received illegal pecuniary benefit of Rs.55 million from Kamran Kyani co-accused, owner of Messrs ConPro Services (Pvt.) Limited who was the second lowest bidder in the abovementioned bidding process. Eventually, the contract of Messrs Ch. Abdul Latif and Sons was cancelled in March, 2013 under false pretext of corrupt practices in the bidding process. PLDC entered into a mutual settlement with Messrs Ch. Abdul Latif and Sons in November, 2013 through which an amount of Rs.5.9 million was paid to the contractor from the Government exchequer. The petitioners thus, by misusing of authority and with mala fide intentions caused dishonest loss to the Government exchequer. As per contents of the reference, the abovementioned project was subsequently transferred from PLDC to the Lahore Development Authority (LDA) by Mian Muhammad Shahbaz Sharif petitioner in clear violation of The Punjab Government Rules of Business, 2011, Companies Ordinance 1984 (now Companies Act, 2017), M.O.A. and A.O.A of PLDC and Corporate Governance Rules, 2013 because under the rules and Act ibid, PLDC, as well as, LDA were autonomous bodies and their projects cannot be transferred by the Chief Minister as the said power fell within the domain of Board of Directors of PLDC. It is further alleged in the reference that without any notification by the competent authority, the projects of PLDC were transferred to LDA. It is also alleged in the reference that Mian Muhammad Shahbaz Sharif petitioner illegally decided to execute the project of Ashiana Iqbal, Lahore under public private partnership mode instead of government mode. After transfer of the project of Ashiana Iqbal Lahore to the LDA, the said contract was awarded to Messrs Casa Developers. Different irregularities were committed by Ahad Khan Cheema, ex-Director General of LDA in awarding the contract to Messrs Casa Developers because Messrs Casa Developers was a joint venture (j.v) of different companies who presented false/fake bid documents showing Messrs Sparco Construction Company, one of the J.V member, as lead member at the time of prequalification, in order to win the contract, without showing percentage share, holding of other J.V members with mala fide intention and in connivance with the Officers/officials of LDA. Later on, at the time of J.V agreement, the lead member of the J.V was changed. Messrs Bismillah and Co was one of the J.V members who was not eligible to participate in Ashiana Housing Project due to the poor financial profile. Messrs Engineering Services Co along with Messrs Sparco Construction Company and Messrs Anhuai Construction Company did not disclose their respective share holdings in the J.V at the time of pre-qualification. Messrs Sparco Construction Company was not the lead company as it had only 9% share in the joint venture, whereas, shares of Messrs Bismillah Engineering Services Co were 90% and share of Messrs Anhuai Construction Company was only 01% but the said share holding was not disclosed at the time of prequalification because of poor financial profile of Messrs Bismillah Engineering Services Co who was not eligible to participate in Ashiana Housing Project therefore, through misrepresentation and fraud, Messrs Casa Developers managed to win the contract. Ahad Khan Cheema co-accused who was the then Director General, LDA obtained illegal gratification while awarding the contract to Messrs Casa Developers in the abovementioned project. The said illegal gratification was received by him through Mansoor Ahmad and Ahmad Hassan, who were his brother-in-law and cousin, respectively as 100-kanals of land valuing Rs.136.34 million, 117-kanals or land of the value of Rs.23.4137 million and 15-kanals of land of the value of Rs.25.584 million situated in Mauza Terha, Lahore Cantt. were transferred in their names. The price of the abovementioned properties were paid by Nadeem Zia co-accused directly from his account. Said Nadeem Zia co-accused was Director of Messrs Paragon City (Pvt.) Limited, Lahore and he was real brother of Munir Zia co-accused who was owner of Messrs Bismillah Engineering Services Co (a member of Messrs Casa Developers joint venture). As per reference, feasibility report prepared by the officials of LDA was not got validated in violation of the instructions of PLDC. Under the contract awarded to Messrs Casa Developers, Lahore an area of 1000-kanals was to be constructed/ developed by the contractor and the remaining area of 2000-Kanals was agreed to be given to the contractor as a consideration for construction and development of the housing scheme at the abovementioned 1000-kanals. It is further alleged in the reference that the decision of the transfer of the project from PLDC to LDA Lahore and execution of the said project under public private partnership mode instead of government mode was malafidely ordered so that illegal benefit be given to the owners of Messrs Paragon City (Pvt.) Limited, Lahore as the said City was situated adjacent to the land allocated for the abovementioned housing scheme. The petitioners were found to be involved in corruption and corrupt practices by misusing their authority. It was also mentioned in the reference that the petitioners failed to protect the rights of 61000 applicants of the abovementioned housing scheme and their acts caused loss of Rs.660 million to the government exchequer hence, the abovementioned reference.

3. It is contended by learned counsel for Mian Muhammad Shahbaz Sharif petitioner that the petitioner is absolutely innocent and he has been made a scapegoat in this case due to the political victimization; that there is no allegation against the petitioner that he received any kickbacks, commission or illegal gratification in this case; that the contract of Messrs Ch. Abdul Latif and Sons was not cancelled by the petitioner rather the matter was settled with the mutual consent of Shahid Latif, the then C.E.O, PLDC and the contractor who have not been made accused in this case; that even otherwise, mutual settlement/agreement of the parties dated 09.11.2013 has not been signed by the petitioner and the same contains the signatures of Shahid Latif, the then C.E.O, PLDC and Ch. Amir Latif the owner of Messrs Ch. Abdul Latif and Sons; that even letter dated 20.03.2013 for encashment of the bank guarantee of the contractor was written by Tahir Khurshid, the then C.E.O, PLDC but he has been made a prosecution witness in this case; that although the petitioner constituted an Inquiry Committee to review the tendering process of the aforementioned scheme as serious complaints were received in this respect but even then the petitioner did not cancel the contract of Messrs Ch. Abdul Latif and Sons; that it has been established in this case that Ali Moazzam Syed PW who was the then Project Director of PLDC met with the contractor at his house, on the night of bid and he did not hand over the bid documents to the consultants on the day of acceptance of bid which shows that the bidding process was not transparent; that even otherwise, under the relevant rules/law, the petitioner being the Chief Minister of the province was competent to transfer the project of one department to the other; that moreover, the decision regarding the transfer of the project from PLDC to LDA, Lahore was duly taken by the Board of Directors of PLDC and the said fact is fully established from the minutes of meetings of the Board of Directors or PLDC dated 12.11.2014 and 28.01.2015; that as the project could not be completed for a considerable period under the government mode therefore, it was rightly decided in this case by the B.O.Ds of PLDC that the execution of the abovementioned project may be carried out under the public private partnership mode; that there was no legal bar to execute the abovementioned project under the public private partnership mode as the same was legally permissible under the Public Private Partnership Act, 2014; that after transfer of the contract from PLDC to LDA, Lahore, the petitioner did not play any role in awarding the contract to Messrs Casa Developers therefore, he cannot be penalized for any irregularity/ illegality in awarding the contract to Messrs Casa Developers; that although the co-accused of the petitioner, namely, Imtiaz Haider, etc were denied the relief of post arrest bail/pre-arrest bail by this Court vide order dated 28.06.2018 but the case of the present petitioner is distinguishable from the case of abovementioned co-accused because the said co-accused have statedly awarded the contract to Messrs Casa Developers, on the basis of forged bid documents and they received illegal gratification, whereas, no role in awarding the contract to Messrs Casa Developers has been played by the petitioner and there is no allegation that he received any illegal gratification; that without conceding, if it is presumed for the sake of arguments that some irregularities have been committed in transferring the project from PLDC to LDA, even then it is a fit case for grant of post arrest bail to Mian Muhammad Shahbaz Sharif, petitioner because there is no allegation of any monetary gain against the said petitioner; that prosecution case against Mian Muhammad Shahbaz Sharif petitioner is one of further inquiry therefore, he may be granted post arrest bail in this case.

4. Learned counsel for Fawad Hassan Fawad petitioner has argued that the said petitioner being the then Secretary (Implementation) to the Chief Minister, Punjab only played a role of a post office in conveying certain directions of the Chief Minister, Punjab to the Board of Directors (B.O.Ds) of PLDC and decision of B.O.Ds to the Chief Minister, Punjab and he did not make any decision regarding the cancellation of contract awarded to Messrs Ch. Abdul Latif and Sons; that as mentioned earlier, letter regarding the encashment of bank guarantee of the contractor was written by Tahir Khursheed (PW), the then C.E.O of PLDC and even the matter between the PLDC and the contractor was patched up with mutual settlement of the parties therefore, the petitioner cannot be blamed for cancellation of any contract; that the Project Director of Ashiana Iqbal Housing Scheme, Lahore, namely, Ali Moazzam Syed and the then Chief Executive Officer (C.E.O.), namely, Tahir Khursheed visited the office of the petitioner because serious complaints against the Project Director, namely, Ali Moazzam Syed regarding his meeting with the contractor on the night of bid were received and prosecution's own witness, namely Tahir Khursheed C.E.O. has categorically stated in his statement recorded under section 161 of Cr.P.C. that Ali Moazzam Syed admitted in his presence that he met with the bidder/contractor on the night of the opening of bid; that it was Tahir Khursheed Ex-C.E.O of PLDC who suspended the Project Director, namely, Ali Moazzam Syed due to his abovementioned meeting with the contractor and this fact has also been admitted by the said witness in his statement recorded under Section 161 of Cr.P.C., that no undue influence for cancellation of the contract was exerted by the present petitioner and the allegation that the petitioner exerted pressure for cancellation of the contract of Messrs Ch. Abdul Latif and Sons so that the same may be awarded to Messrs ConPro Services (Pvt.) Limited, owned by Kamran Kyani co-accused, could not be established by the prosecution because subsequently, the contract was never awarded to Messrs ConPro Services (Pvt.) Limited; that it is true that an amount of Rs.55 million has been transferred in the account of the brother of the petitioner, namely, Waqar Hassan, as well as, in the account of sister-in-law of the petitioner, namely, Anjum Hassan but the abovementioned relatives of the petitioner have been running their own construction company who had business relationship with Kamran Kyani co-accused, whereas, the petitioner had nothing to do with the said transactions; that the N.A.B. has already initiated a separate case/inquiry No.3-1(1)(285)L-II/ IW/NABHQ2018 dated 02.08.2018 regarding the allegation that Fawad Hassan Fawad petitioner possesses assets beyond his means therefore, prosecution of the petitioner on two counts in respect of the same allegations amounts to double jeopardy which is violative of Article 13 of the Constitution of the Islamic Republic of Pakistan and section 403 of Cr.P.C.; that case of the prosecution against the petitioner is one of further inquiry therefore, he may be released on bail. In order to embellish their arguments, learned counsel for both the petitioners have placed reliance on the judgments, reported as 'The State v. Syed Muzaffar Hussain Shah' 1998 MLD 118 and 'Sarwar and others v. The State and others' (2014 SCMR 1762).

5. On the other hand, it is contended by the learned Special Prosecutor for N.A.B. that earlier bail petitions of co-accused of the present petitioners have been dismissed by another Bench of this Court headed by our learned brother Ali Baqar Najafi, J who is presently gracing the Court at the Principal Seat therefore, this petition may also be transferred before the said learned Bench in view of the law laid down by the apex Court of the country in the case of 'The State through Advocate General, N.W,F,P v. Zubair and 4 others' (PLD 1986 SC 173). Insofar as the merits of the case are concerned, the learned Special Prosecutor for N.A.B. while referring to the different documents which he produced before the Court during his arguments contends that the contract for infrastructure development of Ashiana Iqbal Housing Scheme, Lahore was duly awarded to the successful/lowest bidder, namely, Messrs Ch. Abdul Latif and Sons but both the petitioners with mala fide intentions formed an Inquiry Committee to review the whole process of tendering of the abovementioned housing scheme and on account of their intervention, the contract awarded to Messrs Ch. Abdul Latif and Sons was wrongly cancelled; that after awarding the contract to Messrs Ch. Abdul Latif and Sons, the petitioner Mian Muhammad Shahbaz Sharif ordered that the bidding process be inquired by Anti-Corruption establishment, in order to put pressure for cancellation of the above contract; that the project was illegally transferred by Mian Muhammad Shahbaz Sharif from PLDC to LDA, whereas, PLDC and LDA both are autonomous bodies governed by the Companies Ordinance, 1984 and their decisions cannot be taken by Mian Muhammad Shahbaz Sharif petitioner as the same fell within the domain of the Board of Directors of PLDC and LDA; that other Ashiana Housing Schemes were executed under the government mode but Mian Muhammad Shahbaz Sharif petitioner illegally passed an order for execution of the present scheme through public private partnership mode; that it was also established in this case through bank record that Fawad Hassan Fawad petitioner received an amount of Rs.55 million through his brother, namely, Waqar Hassan and his sister-in-law, namely, Anjum Hassan as 'benamidars' of the said petitioner, from Kamran Kyani co-accused and thereafter, the said petitioner put pressure for cancellation of contract awarded to Messrs Ch. Abdul Latif and Sons, so that the same may be awarded to Messrs ConPro Company, owned by Kamran Kyani co-accused; that Sheikh Ala-ud-Din former Chairman of PLDC Board of Directors has made a statement under Section 161 of Cr.P.C. wherein he categorically alleged that on 24.03.2013, Mian Muhammad Shahbaz Sharif visited the site of Ashiana Iqbal Project and directed to complete the project under public private partnership mode but he disagreed with Mian Muhammad Shahbaz Sharif petitioner regarding the execution of the project through public private partnership mode and due to the abovementioned decision of the petitioner, he also resigned from the B.O.Ds of PLDC; that after the transfer of project to LDA, the then Director General LDA, namely, Ahad Khan Cheema co-accused, who was a close aide of Mian Muhammad Shahbaz Sharif petitioner after receiving illegal gratification awarded contract to Messrs Casa Developers, Lahore on the basis of fake bid documents; that the contract was awarded to Messrs Casa Developers, Lahore which was a joint venture (J.V) of Messrs Sparco Construction Company, Messrs Bismillah Engineering Services Co and Messrs Anhuai Construction Company but the share holding of the said company was malafidely not disclosed at the time of prequalification and this was intentionally done because Messrs Bismillah Engineering Services Co was not eligible to participate in Ashiana Iqbal Housing Scheme project due to its poor financial profile; that contract was malafidely granted to Messrs Casa Developers because Munir Zia co-accused was owner of Messrs Bismillah Engineering Services Co. a member of joint venture of Messrs Casa Developers so that undue/illegal benefit be given to Messrs Paragon City (Pvt.) Limited owned by Nadeem Zia co-accused who is real brother of abovementioned Munir Zia co-accused; that in fact Messrs Paragon City (Pvt.) Limited is situated adjacent to the land allocated for Ashiana Iqbal Housing Scheme, Lahore and in the light of the contract executed under public private partnership mode, only an area of 1000-kanals out of 3100-kanals was to be constructed/ developed by Messrs Casa Developers, Lahore and the remaining about 2000-kanals was to be given to the contractor as a consideration of the construction/development of the housing scheme and the said 2000- kanals of land was actually to be given to Messrs Paragon City (Pvt.) Limited; that Ahad Khan Cheema co-accused, the then DG, LDA, after obtaining illegal gratification through his brother-in-law and cousin, namely, Mansoor Ahmad and Ahmad Hassan co-accused awarded contract to Messrs Casa Developers, Lahore for the benefit of Messrs Paragon City (Pvt.) Limited; that acts of the petitioners caused loss to the tune of Rs.660 million to the government exchequer; that the acts of the petitioners caused financial loss to 61000 affectees who were aspiring to get a house in the above scheme; that post arrest bail petition of co-accused of the petitioners, namely, Imtiaz Haider and Bilal Kudwai, as well as, pre-arrest bail petitions of co-accused, namely, Mansoor Ahmad, Ahmad Hassan, Ali Sajjad Bhutta and Munir Zia co-accused have already been dismissed by this Court vide order dated 28.06.2018 and as case of the petitioners is at par with the case of abovementioned co-accused therefore, these petitions may also be dismissed; that scope of post arrest bail in offences under Accountability Ordinance, 1999 is very limited and bails in such like cases can only be granted if the accused is seriously sick or he is behind the bars for a number of years; that the grounds taken by learned counsel for the petitioners require deeper appreciation of evidence, which exercise cannot be undertaken at bail stage; that there is no substance in these petitions therefore, the same may be dismissed. In support, of his contentions, learned Special Prosecutor for the NAB has placed reliance on the judgment reported as "Tallat Ishaq v. National Accountability Bureau through Chairman, and others" (PLD 2019 Supreme Court 112) and un-reported judgments of the Hon'ble Supreme Court of Pakistan passed in C.P. No.1542 of 2016 dated 26.08.2016 and C.P. No.1618/2016 dated 03.08.2016.

6. Arguments heard, Record perused.

7. Insofar as the request of learned Special Prosecutor for N.A.B. regarding the transfer of this case to the Court of our learned brother Ali Baqar Najafi, J, in the light of the case reported as, 'The State through Advocate General, N.W.F.P. v. Zubair and 4 others' (PLD 1986 SC 173), as the earlier bail petitions of co-accused of the petitioners have been decided by a learned Division Bench headed by our learned brother Ali Baqar Najafi, J, is concerned; we are afraid that the said request of learned Special Prosecutor for N.A.B cannot be accepted because as per present roster of sitting of the Hon'ble Judges of this Court, our learned brother, Ali Baqar Najafi, J, is not a member of any Division Bench, whereas, the present petitions can only be heard and decided by a Division Bench of the High Court. Bail petition of Fawad Hassan Fawad is pending adjudication before this Court since 08.10.2018 and a period of more than 04 months has already elapsed in the said petition. Even the bail petition filed by Mian Muhammad Shahbaz Sharif (petitioner) is pending adjudication before this Court from the last more than three weeks and as both these petitions have emerged out of the same reference, therefore, the same have to be decided together. We have also noted that the learned Special Prosecutor fur N.A.B moved a petition in this case bearing office diary No. 21372 of 2019 for the constitution of a Special Bench headed by our learned brother Ali Baqar Najafi, J, but the said petition has been dismissed while sustaining the office objection, by the Hon'ble Chief Justice of this Court vide order dated 11.02.2019. Under the circumstances, we are unable to accept the abovementioned request of learned Special Prosecutor for N.A.B.

8. Insofar as the argument of the learned Special Prosecutor for N.A.B that deeper appreciation of evidence is never approved at bail stage, is concerned, we are fully conscious of the fact that exercise of deeper appreciation of evidence cannot be undertaken at bail stage but in the same time, it is by now well settled that a bail petition cannot be decided in vacuum and tentative assessment of evidence/documents is permissible at bail stage. We may here refer the case of 'Awal Khan and 7 others v. The State through AG-KPK and another' (2017 SCMR 538), wherein at paragraph No. 8, it was observed as under: "In a situation like this, this Court in the cases of:-- (l) 'Khan Mir v. Amal Sherin' (1989 SCMR 1987). (2) 'Muhammad Hanif v. Manzoor and 2 others' (PLD 1981 SC 108). (3) 'Syed Khalid Hussain Shah v. The State' (2014 SCMR 12) held that when the medical evidence is in conflict with the ocular account then, benefit of doubt at bail stage must go to the accused. In the case of 'Muhammad Hanif v. Manzoor and 2 others' (supra), it was held as follows:- "It is true that at the stage of deciding the question of bail, the Court does not enter upon a detailed appreciation and examination of evidence, but it is also clear that the question cannot be decided in vacuum and the Court has to look at the material available when the bail is applied for. Now, in the present case, result of medico-lega1 examination of the deceased was available and the learned Judge of High Court could not have refused to look at it." (underlining and bold is supplied for emphasis) The august Supreme Court of Pakistan in the case of "Zaigham Ashraf v. The State and others" (2016 SCMR 18) at Para-9, was pleased to observe as under:-- "To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice .." Similar view was taken in the cases of 'Muhammad Hanif v. Manzoor and others' (1982 SCMR 153) and 'Adrees Ahmad and others v. Zafar Ali and another' (2010 SCMR 64). It is by now well-settled that despite the bar contained under section 9(b) of the National Accountability Ordinance, 1999, bail can be granted to an accused in a suitable case, by the Supreme Court of Pakistan and the High Court, while exercising their jurisdiction under Article 184(3) or under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, respectively, as observed by the Hon'ble Supreme Court of Pakistan in the cases of 'Khan Asfandyar Wali Khan and others v. Federation of Pakistan through Cabinet Division Islamabad and others' (PLD 2001 Supreme Court 607), 'Haji Ghulam Ali v. The State through A.G., N.W.F.P, Peshawar and another' (2003 SCMR 597) and Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others' (2015 SCMR 1092).

9. Now coming, to the merits of the case, we have noted that the prosecution case is based on two phases. In the first phase, Punjab Land Development Company (PLDC) invited bids for development of infrastructure of Ashiana Iqbal Housing Scheme Lahore and after completion of bidding process, bid was awarded to Messrs Ch. Abdul Latif and Sons. However, the said contract could not be performed on account of the alleged mala fide intervention of the petitioners. Mian Muhammad Shahbaz Sharif petitioner thereafter, passed a direction to transfer the project from Punjab Land Development Company (PLDC) to Lahore Development Authority (LDA), Lahore and he also decided that the project shall be executed through public private partnership mode instead of the government mode. In the second phase, after transfer of the project to LDA, the co-accused of the petitioners, namely, Ahad Khan Cheema, the then D.G. LDA and other co-accused illegally awarded the contract for the development of infrastructure of the abovementioned scheme to Messrs Casa Developers Lahore, on the basis of fake and fabricated bid documents. We have further noted that as per contents of the N.A.B reference the present petitioners have been assigned the roles during the first phase of the occurrence and they did not play any role during the second phase when the contract was awarded to Messrs Casa Developers, Lahore by the LDA authorities. Insofar as, the role of Mian Muhammad Shahbaz Sharif petitioner in the first phase of the occurrence is concerned, we have noted that PLDC initiated the project of Ashiana Iqbal, Barki Road Lahore in the year 2011-12. After approval of the Board of Directors of PLDC, the contract of the said project was awarded to Messrs Ch. Abdul Latif and Sons on 24.01.2013. However, serious complainants were received by Mian Muhammad Shahbaz Sharif petitioner regarding, the transparency of the tendering/bidding process whereupon, the said petitioner, on 25.02.2013, constituted an Inquiry Committee to review the tendering process of the abovementioned scheme. The said Inquiry Committee was headed by Mr. Tariq Bajwa, the then Finance Secretary/ presently Governor State Bank of Pakistan. After the conclusion of inquiry, the Inquiry Committee gave its findings as under:-- "Subject:- REVIEW OF CONTRACTING/ TENDERING FLOATED FOR ASHIANA-II HOUSING SCHEME, BARKI ROAD, LAHORE. Chief Minister Secretariat conveyed the directions of CM on 25.02.2013 (Annexure-A) to review the whole process of tendering undertaken for infrastructure of Ashiana-II Housing Scheme, Barki Rood, Lahore by the Committee as under and submit its recommendations within 48 hours: 2. .. 3. .. 4. .. 5. .. 6. .. 7. .. 8. .. 9. .. 10. 11. 12. 13. 14.

15. Conclusions

6. On the basis of the scrutiny of the record the Committee made the following findings:- a) Prima facie, the contract has been processed as per PPRA Rules and the contract has been awarded to the lowest bidder. b) However, the following points are not strictly, according to establish procedures/prudence. i. It would have been prudent to seek bids from all thirteen pre-qualified bidders. ii. Bids were opened on 03.12.2012 while the, bidding documents were handed over to the Consultant on 04-12-2012 which should have been handed over the same day. iii. Messrs ECSP, should not have directly accepted the Pre-qualification documents of Messrs ConPro. c) The allegations made by Messrs ConPro and confided with MD ECSP may merit independent probe and CMIT may be tasked to follow it up. Although the Inquiry Committee concluded that, prima facie, bidding process was carried out according to the PPRA Rules 2011 but at the same time, certain irregularities in the bidding process were also noted by the Committee, which have duly been mentioned in the above Para No. 16 (b) of the report. We have observed that apart from other irregularities noted by the Inquiry Committee in the bidding process like non-seeking of bids from all thirteen pre-qualified bidders etc, it was specifically noted by the Committee that the bidding documents were not handed over to the consultants on the day of bid i.e. on 03.12.2012. It is also noteworthy that as per petitioners case Ali Moazzam Syed PW was the Project Director of the Ashiana Housing Project and there were allegations against him that he met with the contractor on the night of the opening of the bid and he dishonestly did not deliver the bid documents to the consultants on the day of bid. We have further noted that another prosecution witness, namely, Tahir Khursheed, the then Chief Executive Officer (C.E.O.) of PLDC has categorically stated in his statement recorded under Section 161 of Cr.P.C. that on 13.03.2013, he along with the Project Director, namely, Ali Moazzam Syed PW appeared before Fawad Hassan Fawad petitioner who was the then Secretary (Implementation) to the Chief Minister Punjab, where Ali Moazzam Syed admitted that the contractor had visited his residence on the night of opening of the bid i.e. 03.12.2012, but he made an excuse that the contractor just visited to convey thanks for the transparent bidding process. Tahir Khursheed PW also admitted in his statement recorded under Section 161, Cr.P.C. that after the meeting of 13.03.2013, when he came back to his office, he suspended the Project Director, namely, Ali Moazzam Syed (PW) and also withdrew the work of Ashiana Iqbal project from him. The meeting of the Project Director, namely, Ali Moazzam Syed PW with the contractor on the night of bid and his act of not handing over of the bid documents to the consultants on the day of opening of the bid, coupled with findings of the Inquiry Committee headed by another prosecution witness, namely, Tariq Bajwa who concluded in para 16(b)(i) of the Inquiry report that bidding, documents were not handed over to the consultants on the day of opening of the bid i.e. on 03.12.2012 which was against the established procedures/ prudence, has, prima facie, established that there was something wrong in the bidding process. Inspite of the aforementioned facts, Mian Muhammad Shahbaz Sharif petitioner himself did not pass any order to cancel the contract and the matter was left to be decided by the PLDC. The allegations levelled against the said petitioner that he cancelled the contract of Messrs Ch. Abdul Latif and Sons, have not been supported by any documentary evidence. It is evident from the perusal of the record that letter dated 20.03.2013 for encashment of the Bank Guarantee of the contractor was written by Tahir Khursheed PW, the then C.E.O, PLDC. In the said letter, no reference has been made in respect of any direction or order of Mian Muhammad Shahbaz Sharif petitioner. Even the said witness did not state in his statement under Section 161, Cr.P.C. that he wrote the abovementioned letter under the direction or pressure of Mian Muhammad Shahbaz Sharif petitioner. Needless to mention here that the bank guarantee, furnished by the contractor, Messrs Ch. Abdul Latif and Sons was never encashed by PLDC. Moreover, the allegation against Mian Muhammad Shahbaz Sharif petitioner that he got cancelled the contract of Messrs Ch. Abdul Latif and Sons has also not been supported by the record of the present case because the contract was never cancelled rather the matter was settled through written agreement dated 09.11.2013 with the mutual consent of the parties. The said agreement dated 09.11.2013 is also available on the record which shows that the same has been signed by Shahid Latif, the then C.E.O of PLDC and by Ch. Amir Latif, contractor/ proprietor of Messrs Ch. Abdul Latif and Sons. There is no mentioning of Chief Minister of Punjab in the abovementioned agreement and Mian Muhammad Shahbaz Sharif is not a signatory of the said agreement. Although it is argued by learned Special Prosecutor for N.A.B. that Tahir Khursheed, C.E.O. of PLDC was forced by Mian Muhammad Shahbaz Sharif to cancel the abovementioned contract but Tahir Khursheed PW has not uttered a single word in his statement recorded under Section 161 of Cr.P.C. that he was pressurized by Mian Muhammad Shahbaz Sharif petitioner, to cancel the abovementioned contract. Even otherwise, it is established through documentary evidence i.e. abovementioned agreement dated 09.11.2013 that the matter was finalized with the mutual consent and settlement of the parties to the contract.

10. Insofar as the allegations against Mian Muhammad Shahbaz Sharif petitioner that he illegally transferred the project of Ashiana Iqbal Housing Scheme, Lahore from PLDC to LDA and his decision regarding the execution of the said project through public private partnership mode instead of government mode is concerned, we have noted that the abovementioned project was transferred with the approval of the Board of Directors of PLDC. Minutes of meeting of the Board of Directors of PLDC have clearly established that meeting in respect of transfer of abovementioned project to LDA was held on 23.10.2014. The agenda regarding the transfer of abovementioned project was included in the said meeting and the prescribed quorum for the meeting was present and at serial No. 07, it has categorically been mentioned that the Board of Directors has entrusted D.G, LDA to share his efforts with PLDC Board for the information on the development for Ashiana Iqbal, Lahore. Similarly, in the meeting dated 12.11.2014, prescribed quorum was present in the meeting and it is mentioned at serial No. 02 of the minutes of meeting that PLDC Board resolved as under:- "PLDC Board resolved the following: (a) PLDC would sign agreement with LDA for services regarding procurement and execution of Ashiana Schemes. (b) PPP documents for Ashiana-e-Iqbal and Ashiana-e-Quaid to be submitted to PPP Cell by LDA. (c) LDA to prepare tender documents in parallel to PPP process to mitigate risk of PPP process failure. It is therefore, evident that the Board of Directors of PLDC itself decided to transfer Ashiana Iqbal Project to LDA, Lahore for its execution through public private partnership mode. It is also evident from the Minutes of meeting of Board of Directors of PLDC dated 28.01.2015 that minutes of 36th Board of Directors meeting held on 12.11.2014 were duly approved by the Board of Directors and the prescribed quorum was also present in the said meeting and as such, there is no force in the arguments of the learned Special Prosecutor for N.A.B. that the project was transferred from PLDC to LDA, by Mian Muhammad Shahbaz Sharif petitioner, without the approval of the Board of Directors of PLDC. Similarly, there is no substance in the allegations levelled against Mian Muhammad Shahbaz Sharif petitioner that without the approval of the Board of Directors, mode of execution of project in public private partnership mode instead of government mode was ordered by the said petitioner, whereas, the said decision was also taken and approved by the Board of Directors of PLDC during their abovementioned meetings. Moreover, it is not understandable that as to why the N.A.B. is insisting that the project should have been executed in the government mode instead of public private partnership mode when the later mode is also lawful, as envisaged under the Public Private Partnership Act, 2014. It is also noteworthy that even the sitting government has launched a project for the construction of 50,00,000/- houses in Pakistan under the same mode i.e. public private partnership mode and no objection has so far been raised, in this respect, by the N.A.B.

11. We have further noted that Mian Muhammad Shahbaz Sharif petitioner, being the Chief Minister, Punjab had the authority under the Punjab Government Rules of Business, 2011 to transfer any subject or matter, mentioned in the 2nd schedule from one department to any other department. In this respect, relevant rules and schedules are reproduced hereunder:- Rule: "

3. Allocation of Business.--(1) . (2) . (3) . (4) Notwithstanding anything in sub-rule (3), the Chief Minister may transfer any subject or matter from the Department, to which it stands assigned in accordance with the Second Schedule, to any other Department. (5) . (6) . (7) . SECOND SCHEDULE (See Rule 3(3)) DISTRIBUTION OF BUSINESS AMONG DEPARTMENTS. AGRICULTURE DEPARTMENT. HOUSING, URBAN DEVELOP-MENT AND PUBLIC HEALTH ENGINEERING DEPARTMENT 1. .. 2. .. 3. .. 4. .. 5. .. 6. ..

7. Matters relating to develop-ment authorities/agency/company as reflected in Schedule-I. FIRST SCHEDULE [See Rules 2 and 3] LIST OF DEPARTMENTS. Sr. No. Secretariat Department Head of Attached Department Autonomous Bodies and Companies

1. Agriculture Department

2. Auqaf and Religious Affairs Department

3. Chief Minister's inspection Team

4. Colonies Department

5. Communication and Works Department

6. Consolidation of Holdings Department

7. Cooperatives Department

8. Energy Department

9. Environment Protection Department

10. Excise and Taxation Department

11. Finance Department

12. Food Department

13. Forestry ,Wildlife and Fisheries Department

14. Governor's Secretariat

15. Health Department

16. Higher Education Department

17. Home Department

18. Housing Urban Development and Public Health Engineering Department (i) Chief Engineer, Public Health Engineering Punjab, North Zone (ii) Chief Engineer, Public Health Engineering Punjab, South Zone. (i) Lahore Development Authority. (ii)

(iii)

(iv)

(v)

(vi)

(vi)

(vii)

(viii)

(ix)

(x)

Company: Punjab Land Development Company (PLDC) (Bold and underlining supplied for emphasis) The definition of company has been given in Section 2(h) of the Rules, 2011 ibid which reads as under: "

2. Definition:

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h) "Company" means a company created in public sector as mentioned in the First Schedule. It is therefore, clear from the perusal of abovementioned rules and schedules that Mian Muhammad Shahbaz Sharif (petitioner) being the then Chief Minister of Punjab had the authority to transfer the project of Ashiana Iqbal, Lahore from PLDC to LDA, Lahore. Learned Special Prosecutor for N.A.B has argued that under the abovementioned Rule 3(4) of the Rules, 2011 ibid, only the matters assigned to one department mentioned in the 2nd schedule can be transferred to another department, whereas, the matter pertaining to a company cannot be transferred but there is no substance in the said argument of learned Special Prosecutor for the N.A.B. in view of the abovementioned Rules and in the light of the Judgment passed in the case of 'Sheikh Nadeem Ahmad v. G.C. University and others' (2016 MLD 1966), wherein it was held that "the Government College University, Lahore was under the administrative control of the Government and the same was performing the functions for the benefit of public and not for private gain or profit. Moreover, the Government of the Punjab had made the Rules of Business under Article 139 of the Constitution and the Government College University, Lahore was specified therein therefore, the said University was an attached institution of the Government of the Punjab and the Higher Education Department." As PLDC, as well as, LDA are specifically mentioned in the 1st Schedule of The Punjab Government Rules of Business, 2011, and they are performing functions for the benefit of the public and not for private gain or profit therefore, they are attached institutions/ departments of the Government of Punjab and as such, there is no substance in the abovementioned objection of learned Special Prosecutor for N.A.B.

12. It was further alleged by the N.A.B that Mian Muhammad Shahbaz Sharif petitioner cancelled the contract of Messrs Ch. Abdul Latif and Sons and transferred the project to LDA so that the same may be executed through public private partnership mode and the abovementioned acts were committed by the said petitioner in order to extend illegal benefit to the owners of Messrs Paragon City (Pvt.) Limited. Learned Special Prosecutor for N.A.B. has stated that the Directors of Messrs Paragon City (Pvt.) Limited are Nadeem Zia co-accused and Qaisar Amin Butt but he has frankly conceded that the said owners of Messrs Paragon City (Pvt) Limited have no relationship with Mian Muhammad Shahbaz Sharif petitioner. It is further noteworthy that even the contract awarded to Messrs Casa Developers, Lahore was cancelled on 10.04.2017 i.e. about six (06) months prior to the receiving of first complaint by the N.A.B authorities which was received on 31.10.2017. Not a single inch of the State land has been transferred in the name of any person/ contractor till today. Not a singe affectee of Ashiana Iqbal Scheme, Lahore out of 61000 affectees as claimed by the N.A.B, made any statement before the N.A.B against the petitioners to support the allegation of N.A.B that the petitioners caused financial loss to 61000 affectees. Prima facie, there is not a single affectee in this case because no amount for the allotment any plot from any person has been received so far and only application forms along with non-refundable fee of Rs.1000/- were received from the applicant and the said amount has been deposited in the government treasury and not in the account of any of the petitioners. None from the prosecution witnesses, namely, Tariq Bajwa Ex-Secretary Finance, Government of Punjab/presently Governor State Bank of Pakistan, Tahir Khursheed Ex. C.E.O PLDC, Ali Moazzam Syed Ex-Project Director Ashiana Iqbal Lahore PLDC and Arif Majeed Butt Ex-Chief Engineer PLDC, uttered a single word against Mian Muhammad Shahbaz Sharif petitioner. Although Ch. Aamir Latif (PW)/ contractor levelled allegation against Mian Muhammad Shahbaz Sharif petitioner that as the said petitioner ordered an inquiry regarding the acceptance of his bid therefore, his contract was cancelled but the record shows that he settled the matter with PLDC with his mutual consent through a written agreement dated 09.11.2013. He remained mum for a period of 4-1/2 years and did not approach to the N.A.B. or any other authority. Similarly, the statement of Sheikh Ala-ud-Din Ex-C.E.O. PLDC that he disagreed with the petitioner when he (petitioner) took the decision of execution of Ashiana Iqbal Housing Project under public private partnership mode and subsequently resigned from PLDC Board due to the abovementioned decision of the petitioner has, prima facie, not been supported by any minutes of the meeting of the B.O.Ds. of PLDC wherein the abovementioned disagreement of the said witness was recorded or through placing on the record the resignation of the said witness wherein the abovementioned disagreement of the said witness or the reason of his resignation could have been mentioned. Even the said witness also remained mum for a period of about 4-1/2 years and during the said period, he never approached the N.A.B or any other authority to complain against Mian Muhammad Shahbaz Sharif petitioner. We are therefore, not persuaded to dismiss this petition on the basis of the statements of abovementioned witnesses. Had Mian Muhammad Shahbaz Sharif petitioner any intention to benefit any of his relative or friend then he could have easily awarded the contract at the very first instance to his said relative/ Friend before awarding the same to Messrs Ch. Abdul Latif and Sons or transferring the same to LDA. There was no need for him to first award the said contract to Messrs Ch. Abdul Latif and Sons and then get the same cancelled through holding an inquiry and then transfer the scheme to LDA and thereafter, awarding the same to Messrs Casa Developers, Lahore, with whom, the prosecution has, prima facie, failed to establish any relationship or friendship of the said petitioner.

13. It was also contended by the learned Special Prosecutor for N.A.B that after awarding the contract to Messrs Ch. Abdul Latif and Sons the petitioner also ordered that the bidding process be inquired by the Anti-Corruption Establishment, Lahore which shows mala fide and dishonest intentions of the petitioner in this case. The said contention of the learned Special Prosecutor for N.A.B. has no force in view of the findings of the Inquiry Committee headed by Tariq Bajwa (PW), admission of Ali Moazzam Syed PW before Tahir Khursheed PW regarding his meeting with the contractor at his residence on the night of bidding process and delayed handing over of the bid documents to the consultants, which facts have fully been described in para No. 8 of this order. Under the abovementioned circumstances, the petitioner being the Chief Minister Punjab and custodian of the public wealth, rightly referred the matter to be inquired by ACE, Lahore in order to determine the transparency of the bidding process.

14. There is no allegation against Mian Muhammad Shahbaz Sharif petitioner that he misappropriated the funds allocated for the abovementioned scheme or received any illegal gratification, commission or kickbacks from the contractor who was awarded the contract for the construction/development of the said scheme. Under the circumstances, it is a fit case for grant of post arrest bail to the petitioner. We may refer here the case of Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282) wherein at Page Nos.285 and 288, it was observed as under:- Page-285 "Allegations against the petitioner are that in November/December, 1993 while holding the office of Chairman, Capital Development Authority, he sanctioned an amount of Rs.0.6 million to the Environment Directorate, CDA for landscaping near Gate No.3 of the Prime Minister's House, Islamabad in breach of procedure and without following the rules on the subject." Page-288 "

7. As regards the nature of accusation against the petitioners, the truth or otherwise of such allegations can only be determined at the trial by the Court after deep analysis of the evidence that may be adduced by the parties. Without going deeper into the merits of the prosecution case, it may suffice to observe that prima facie the petitioner does not appear to be guilty of misuse of official position or misappropriation of public ands to his own use or in order to cause monetary loss of public funds or to obtain illegal gain for himself or for any of his relatives or friends. It is not the case of the prosecution that the amount sanctioned by him was not actually spent on the works for which it was approved." Moreover, mere allegation of misuse of authority is by itself not sufficient to refuse bail to the petitioner. If, for the sake of arguments, it is presumed that there was any procedural irregularity in the exercise of jurisdiction by the petitioner, even then the same may not amount to the misuse of authority so as to constitute an offence under section 9(a) (vi) of the National Accountability Ordinance, 1999. We may refer here the case of "The State v. Anwar Saif Ullah Khan" (PLD 2016 Supreme Court 276). The relevant part of the said judgment is reproduced hereunder:- "It is also apparent from the same precedent cases that a mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence under section 9(a)(vi) of the National Accountability Ordinance, 1999 and that a charge of misuse of authority under that law may be attracted where there is a wrong and improper exercise of authority for a purpose not intended by the law, where a person in authority acts in disregard of the law with the conscious knowledge that his act is without the authority of law, where there is cm conscious misuse of authority for an illegal gain or an undue benefit und where the act is done with intent to obtain or give some advantage inconsistent with the law .". Reliance in this respect may also be placed on the case of "Anwar Saifullah Khan v. The State and 4 others" (PLD 2000 Lahore 564) wherein the learned Full Bench of this Court with majority decision, granted post arrest bail to the petitioner of the said case inter alia on the ground that the main allegation against him was of the misuse of his political powers and as the massive documentary evidence was to be recorded in the said case to prove the above allegation, therefore, the petitioner of the said case was found entitled to the relief of post arrest bail. The relevant part of the abovementioned judgment of this Court at Page-584 reads as under:-- "This is a case of misuse of political power. The accusations against him flow from a massive documentary evidence. The petitioner, naturally, needs an occasion to see these documents, prepare his defence and face the trial. This entitles him prima facie, the concession of post-arrest bail. Seeing from the above perspective, we are clear in our mind that he has a prima facie case calling for exercise of our jurisdiction to order his pre-trial release. This will enable him to prepare his defence."

15. Now coming to the case of Fawad Hassan Fawad petitioner, we have noted that he has neither played any role in awarding the contract, to Messrs Ch. Abdul Latif and Sons or cancellation of the same. Even otherwise, as mentioned earlier, the contract of Messrs Ch. Abdul Latif and Sons was not cancelled by any one rather the matter was settled with mutual consent of the parties through a written agreement dated 09.11.2013. Fawad Hassan Fawad petitioner cannot be penalized only on the ground that he inquired from Tahir. Khursheed the then CEO of PLDC and Ali Moazzam Syed, the then Project Director, regarding the complaints received about the transparency of the bidding process while accepting the bid of Messrs Ch. Abdul Latif and Sons. It is true that an amount of Rs.55 million was received in the account of the brother of Fawad Hassan Fawad petitioner, namely, Waqar Hassan and his sister-in-law, namely, Anjum Hassan from the bank account of Kamran Kyani co-accused and it is claim of the prosecution that Fawad Hassan Fawad petitioner received the abovementioned amount through his 'benamidar' relatives as he (Fawad Hassan Fawad) wanted to give the contract to Kamran Kyani co-accused who was the second lowest bidder during the first bidding process of Ashiana Iqbal, Lahore but we have noted that the contract of Ashiana Iqbal Housing Scheme, Lahore has never been awarded to Kamran Kyani co-accused. Moreover, Fawad Hassan Fawad petitioner was not a member of the Board of Directors of PLDC who was competent to award or cancel the said contract before the transfer of the said project to the LDA. Fawad Hassan Fawad petitioner had neither any authority to cancel the contract of Messrs Ch. Abdul Latif and Sons nor he had the authority to award the said contract to Kamran Kyani co-accused. Fawad Hassan Fawad petitioner has absolutely no role, in the affairs of PLDC and he being the Secretary (Implementation) to the Chief Minister, Punjab was merely playing the role of a post office by conveying, the decisions of Chief Minister Punjab to the BODs of PLDC and decision of BODs of PLDC to the Chief Minister, Punjab. However, the receipt of an amount of Rs.55 million by Fawad Hassan Fawad petitioner through his abovementioned 'benamidar' relatives is, apparently established but the receipt of the said amount at the most would, prima facie, make out a case of assets beyond means. Bail petition of Fawad Hassan Fawad petitioner can be dismissed on the said ground but we have noted that the N.A.B has initiated a separate proceeding against the abovementioned petitioner in respect of the allegation of assets beyond means through case/inquiry No.3-1 (1)(285)L-II/WI/ NABH2018 dated 02.08.2018. We have further noted that apart from the abovementioned assets of Rs.55 million mentioned in the present reference, number of other assets have also been mentioned in the above referred separate investigation and through the said separate investigation, the N.A.B. intends to file a separate reference qua the assets beyond means of Fawad Hassan Fawad petitioner. The assets received by the petitioner through his 'benamidar' relatives which have been mentioned in the present reference have also been under inquiry in the abovementioned second case/inquiry No.3-1(1)(285)L-II/ WI/NABHQ2018 dated 02.08.2018. It is by now well-settled that on the basis of allegation of assets beyond means, only one reference can be filed against an accused. We have already dismissed today the bail application of Fawad Hassan Fawad petitioner bearing Writ Petition No. 229141 of 2018 in the above-mentioned second case/investigation regarding assets beyond means of the said petitioner therefore, it would not be appropriate to dismiss bail application of the petitioner in the instant reference only on the abovementioned ground of assets beyond means because the same would amount to double jeopardy which is violative of Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 and section 403, Cr.P.C. Similarly, if we dismiss the bail application of the petitioner in the present reference on the ground that he cannot account for the abovementioned assets of Rs. 55 million, received by him through his 'benamidar' relatives, then the petitioner may claim that he may be granted bail in the above-mentioned second case bearing inquiry No. 3-1 (1) (285) L-II/WI/NABHQ2018 dated 02.08.2018, where apart from his abovementioned assets of 55 million, his number of other assets have also been mentioned and he would raise the ground of double jeopardy in the said second case. Under the circumstances, we are of the view that it would not be appropriate and legal to dismiss the bail application of Fawad Hassan Fawad petitioner in the instant case, whereas, apart from the said allegation of assets beyond means, there is nothing against Fawad Hassan Fawad petitioner in the present case to connect him with the alleged offence. The said petitioner did not play any role in the second phase of the case when the project was transferred to LDA and contract was awarded to Messrs Casa Developers, Lahore.

16. It is true that post arrest bail petitions of co-accused of the petitioners, namely, Imtiaz Haider Ex-C.E.O, PLDC, Bilal Kudwai, Ex-Applied Economic Specialist, Strategic Policy Unit (SPU) LDA, Lahore and Project Coordinator, whereas, pre-arrest bail petitions of Mansoor Ahmad, Ahmad Hassan, Ali Sajjad Bhutta and Munir Zia co-accused have been dismissed by this Court vide order dated 28.06.2018 in Writ Petitions No. 214616 of 2018, Writ Petition No. 214616 of 2018, Writ Petition No. 215304 of 2018, Writ Petition No. 215499 of 2018, Writ Petition No. 214755 of 2018, Writ Petition No. 186202 of 2018, Writ Petition No. 186197 of 2018 but the case of the present petitioners is distinguishable from the case of abovementioned co-accused because, as mentioned earlier, N.A.B. reference consists of two phases. In the first phase, the contract for development of infrastructure of the scheme was awarded to Messrs Ch. Abdul Latif and Sons but the same could not be executed and the matter was mutually settled between the contractor and PLDC through a written agreement dated 09.11.2013 and later on, the project was transferred to LDA to be executed under public private partnership mode, whereas, in the second phase, after the transfer of project to LDA, the contract was awarded to Messrs Casa Developers, Lahore on the basis of fake and fictitious bid documents. Present petitioners have nothing to do with the award of contract to Messrs Casa Developers, Lahore in the second phase, whereas, the abovementioned co-accused whose bail petitions have already been dismissed by this Court, took active part in awarding the contract to Messrs Casa Developers, Lahore. Abovementioned Imtiaz Haider, co-accused being Ex-C.E.O. of PLDC signed the agreement dated 23.07.2015 with Messrs Casa Developers, Lahore on the basis of fake and fictitious bid documents, whereas, Bilal Kudwai, Project Coordinator co-accused, prepared draft request for purposes of bid documents, feasibility and drafted development agreement in violation of PPP Act, 2014, knowingly that lead member of the joint venture was not actually the lead member. Abovementioned Ali Sajjad Bhutta was authorized representative of Messrs Casa Developers, Lahore, who presented fake bidding documents, whereas, Munir Zia co-accused is Director/owner of Messrs Bismillah Engineering Services Co and he was also involved in tendering fake/ fabricated bid documents. Mansoor Ahmad co-accused and Ahmad Hassan co-accused were 'benamidars' of Ahad Khan Cheema, Ex-DG of LDA and properties were transferred in their names by Nadeem Zia co-accused, whereas, there is no such allegation against Mian Muhammad Shahbaz Sharif petitioner that he played any role in the second phase of occurrence (in the bidding process or execution of agreement with Messrs Casa Developers, Lahore). There is no allegation against Mian Muhammad Shahbaz Sharif petitioner that he received any kickbacks, illegal gratification or any property was transferred in his name or in the name of any of his relatives. Although there is allegation against Fawad Hassan Fawad petitioner that his 'benamidar' relatives received an amount of Rs.55 million from Kamran Kyani co-accused but this aspect of the case has already been discussed in paragraph No. 15 of this order. Furthermore, Fawad Hassan Fawad petitioner did not play any role in second phase of the occurrence, wherein the contract was illegally awarded to Messrs Casa Developers, Lahore by the LDA officials. The case of the present petitioners who have been assigned the role in the first phase of the occurrence is therefore, distinguishable from the abovementioned co-accused who were assigned roles during the second phase of the occurrence and whose bail petitions have earlier been dismissed by this Court.

17. In the light of above discussion, prosecution case against both the petitioners is of further probe and inquiry therefore, both these petitions are allowed and the petitioners, namely, Mian Muhammad Shahbaz Sharif (petitioner in Writ Petition No. 4051 of 2019) and Fawad Hassan Fawad (petitioner in Writ Petition No. 240528 of 2018) are admitted to post arrest bails in Accountability Reference No. 50 of 2018, subject to their furnishing the bail bonds in the sum of Rs. 10 million (Rupees ten million only) each with one surety each in the like amount to the satisfaction of the learned trial Court.

18. The above detailed reasons be read as part and parcel of our short orders of even date passed in these petitions, which are reproduced hereunder:-- Writ Petition No. 4051 of 2019. "We have heard the learned counsel for the parties at length and perused the record.

2. For the reasons to be recorded later on, this petition is allowed and the petitioner namely Mian Muhammad Shahbaz Sharif is admitted to post arrest bail in Accountability Court Reference No.50 of 2018 subject to his furnishing bail bond in the sum of Rs.10 million (Ten Million), with one surety in the like amount to the satisfaction of learned trial Court". Writ Petition No. 240528 of 2018 "We have heard the learned counsel for the parties at length and perused the record.

2. For the reasons to be recorded later on, this petition is allowed and the petitioner namely Fawad Hassan Fawad is admitted to post arrest bail in Accountability Court Reference No. 50 of 2018 subject to his furnishing bail bond in the sum of Rs.10 million (Ten Million), with one surety in the like amount to the satisfaction of learned trial Court". SA/H-11/L Bail granted.