2010 PLP 1979 (YLR)

SAJJAD ALI SHAH, J.

The petitioner prays that the respondent National Accountability Bureau Sindh be directed:--

1. To act in accordance with law and produce before the Court the result of inquiry/investigation if conducted in the matter;

2. If no inquiry or investigation has yet been authorized/commenced or processed, Inquiry/Investigation Officer be appointed who should conduct the inquiry/ investigation in accordance with the provisions of the law within reasonable time but not later than three months;

3. Reference be filed against the perpetrators without any discrimi nation in the Accountability Court.

4. Any other relief considered appropriate in the interest of justice. Briefly the petitioner on 6-2-2007 lodged a complaint with the Chairman NAB Sindh against the alleged discriminatory treatment, corruption and corrupt practices followed by the officials of Karachi Port Trust with a request to probe an inquiry and to take cognizance of the complained acts and omissions under section 18 of the NAB Ordinance, 1999. It is the case of petitioner that since the complaint was not heeded to by the respondents, therefore, the instant petition with the prayer as reproduced above. On 29-1-2010, this Court directed the NAB authorities to deal with the complaint of the petitioner and to pass a proper order in accordance with law and convey the same to the petitioner preferably within a period of four weeks and in consequent to that order, a letter dated 11-2-2010 has been placed on record by the learned DPG NAB stating therein that upon scrutiny of petitioner complaint, it has transpired that no offence cognizable by NAB under the provisions of National Accountability Ordinance 1999 has been made out. Learned counsel for the petitioner has contended that the petitioner conceived an idea to establish a state of the art container terminal at KPT and consequently established a Private Limited Company named as M/S Paramount Communication (Pvt.) Limited (PCS) and thereafter the Petitioner's company under a joint venture partnership with American President Line (APL) and International Container Terminal (ICTSI) {foreign companies} participated in the bidding process held by the KPT and a draft letter of intent was issued. It is the case of the Petitioner that Memorandum of undertaking was withheld by the KPT till the removal of the Petitioner Company from the Joint Venture though there was no provision whereby the KPT could deny tender only because of the fact that consortium which was to be awarded contract to set up container terminal had one Pakistani partner despite such practice was adopted. It is further contended that exclusion of the Petitioner from the consortium would allow the remaining two partners who were foreign based companies to take the entire profit which in turn would cause loss to the national exchequer and further the Petitioner needs to be compensated. It is further contended that the Petitioner in 2006 had approached the President of Pakistan and the Ministry of Port and Shipping in its brief dated 7-6-2006 suggested that the President may like to issue such appropriate orders to KPT/KICT that PCL is reinstated as a shareholder in KICT since the time of issuance of LOI as PCL was the only Pakistani shareholder and after it's exclusion the whole of the profit had flown to the foreign countries causing loss to exchequer, and PCL should also be compensated accordingly. It was therefore, contended that since KPT has caused loss to the National Exchequer by exclusion of the Petitioner from joint venture agreement, therefore, it was fit case of taking cognizance under section 9(a)(vi) of the National Accountability Ordinance, 1999 and rejection of the Petitioner's complaint by the Respondent cannot sustain. On the other hand, Mr. Muhammad Aslam Butt, Deputy Prosecutor General NAB has contended that in consequent to order of this Court the complaint of the Petitioner along with all the documents was fully scrutinized and it was thoroughly examined and such process has revealed that a joint consortia of two foreign companies namely American President Line (APL) and International Container Terminated (ICT) along with the local Pakistani Company of the Petitioner (PCL) submitted their EOI to KPT and the same was considered by the KPT Board for setting up of Container Terminal at Berth 22 to

24. It was asserted by the complainant that KPT on 7-3-1999 decided to issue a letter of intent subject to fulfilling certain conditions including 10% equity of KPT and a draft Letter of Intent was placed before the then Minister for Communication who did not finalize the Letter of Intent by upholding the objection of the KPT to either make the project 100% foreign equity based and in case a local associate is to participate then it should be the KPT instead of Petitioner and subsequent communication between the KPT and the foreign companies reflect that they reached in agreement to the effect that the project would be proceeded with 100% foreign equity. It also came on record that the complainant had filed a Suit No.629/1997 which is pending in this Court seeking declaration, specific performance, permanent injunction and damages and a complaint was also filed before the concerned Judicial Magistrate which was quashed. Per learned DPG the Complainant did not allege any instance of corruption or misuse of authority by any KPT officer warranting any action under the Ordinance 1999 and consequently the allegations were considered in Board Meeting on 10-2-2010 and it was unanimously concluded that the complaint of the Petitioner does not disclose the commission of an offence whereby action could be taken by the Respondent and he was advised to pursue remedy, if any, in accordance with law. We have heard the learned counsel for the respective parties and have perused the record. The nutshell of the allegations levelled by the Petitioner against the KPT appears to be that the Petitioner due to acts and omissions of the KPT was excluded from a joint venture agreement by his remaining partners as the KPT did not allow participation of local company for setting up of the container terminal at Berths 22 to 24 by putting a stance that in case the consortium which was to be given the contract of setting up container terminal consist and comprises of local equity then it should be the KPT. The concluding paragraph of the report filed by the Respondent reflects that neither the process could be finalized nor the project could commence being sub judice before this Court in different proceedings. The relevant paragraph of the report is reproduced as follows: "From the foregoing findings, correspondence record and statement of the complainant it may be concluded that the tendering process for the project which the complainant accused the KPT/GOP to be so negotiated as to exclude his company from the process, was not finalized and the project did not take off and that the matter is still sub judice in the Hon'ble High Court Sindh." Though the Petitioner has alleged corruption, corrupt practices and misuse of authority by the KPT officials but has not placed on record anything to substantiate the allegations of corruption or corrupt practices. As to misuse of authority again the Petitioner has not even alleged that the misuse of authority if any was to achieve any personal gain/benefit or favour by the KPT officials for themselves or for any other person. Under section 9 of the National Accountability Ordinance, 1999 a holder of a public office is said to commit or to have committed the offence of C corruption and corrupt practices if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority. In the instant case, the Petitioner has not even alleged that misuse of authority, if any, to derive any gain/benefit or favour by the KPT officials for themselves or for any other person in order to attract the jurisdiction of the Respondents. The wrongful removal of the Petitioner Company from Joint Venture at the instance of KPT upon being proved may give rise to an action for damages or to any other relief provided by law but not to an action under Ordinance "1999" as there is nothing on record to establish or substantiate that the removal of the Petitioner Company even at the instance of KPT was to achieve wrongful gain. In view of what has been discussed above, we do not find any reason to interfere with the report of the Respondents rejecting the Petitioner's complaint for want of jurisdiction. The petition consequently is dismissed. H.B.T./F-13/K Petition dismissed.