2017 PLP 413 (YLRN)

FAHIM AHMED SIDDIQUI, J.

This single order will decide the two bail applications moved on behalf of the applicants Nizamuddin Memon and Shabbir Ahmed Panhyar, who are involved in a case registered against them at Police Station A.C.E. Shikarpur vide Crime No. GO-11/2016, for the offences under sections 161, 467, 468, 477-A, 409 and 34 P.P.C. read with section 5(2) of Prevention of Corruption Act-II of 1947.

2. After hearing the learned counsel for the parties and going through the record and citations, I have observed as under: (a) In pursuance to FIR mentioned above, at the given date, time and place a team of ACE Shikarpur conducted a raid in the supervision of a Judicial Magistrate at the office of Executive Engineer, Highways Division Shikarpur and arrested the applicants and other co-accused while some of the nominated accused could not be apprehended, who succeeded in getting interim pre-arrest bail from trial Court. Allegations are that they have awarded contracts without observing Sindh Public Procurement Rules, (hereinafter mentioned as SPPR). Applicant/ accused Nizamuddin Memon and other accused are alleged to have released/made payments amounting to Rs.67,71,56,546/- to contractors on bogus MBs, while applicant/accused Shabbir Ahmed Panhyar is alleged to have made illegal payments amounting to Rs.31,88,90,562/- by prepar-ing bogus records in connivance of other accused. (b) Allegedly, there is some violations of SPPR, but the prosecution has not pointed out, which of the rules of SPPR are violated and what is the effect of the same and how it will cause loss to the public exchequer. (c) As per preamble of Sindh Public Procurement Act, 2009; the purpose of the Act is to provide for the establishment of Public Procurement Regulatory Autho-rity or to regulate public procurement of goods, services and work in the public sector. The SPPR are made under the aforesaid Act, and it is yet to see that if a violation of any SPPR is really done and if it is done it has actually caused loss to public exchequer. (d) Purportedly, the incident was taken place during May/June 2016, but FIR was lodged on 02.01.2016, (sic) that is a delay of about six months and the same is not plausibly explained within the body of FIR. (e) The raid was conducted on the report of a contractor, whom tender was not awarded. The complainant has not mentioned in the FIR that any of the accused demanded a certain amount. In the instant case, neither tainted money is used, nor it is mentioned in the FIR that any material or document was required to be recovered, then raid under the supervision of a Magistrate itself is questionable. (f) The complainant is a contractor, whom admittedly contract was not awarded; therefore, the chances of a false and motivated FIR on account of business jealousy and rivalry cannot be ruled out. (g) It has come on the record that authorities have constituted a Procurement Committee for Shikarpur as per provision of Rule 7 of SPPR, comprising Superintending Engineer, Works and Services, Shikarpur (Chairman), Executive Engineer, Highways Division, Shikarpur (Member) and Assistant Engineer, Public Health Engineering Sub-Division, Shikarpur (Member). (h) The learned D.P.G objected that the Procurement Committee was not complete, as at the time of procurement, Chairman of the committee was also holding charge of another member. In this respect, my observation is that the said committee may be reconstituted at any time, besides if it is a case of mis-procurement, then the mechanism is provided within SPPR under Rule 56 and apparently, the provision of Rule 56 of SPPR has not been followed in the instant case before lodging of FIR. (i) The investigating officer has filed the copy of the technical report, prepared during the investigation. As per this report, the measurements of items of works carried out at the site were checked and found as per recorded MB, and the payments to the contractors were made accordingly and 'No Loss' seems to have been caused to the government exchequer. The objection of learned DPG regarding the technical report comes under the purview of deeper appreciation and same may be considered at the time of trial. (j) The case against the applicants/ accused depends on documentary evidence, which must have been taken in possession by the investigating agency during the raid. The applicants are in judicial custody, as such no more required for investigation. (k) The co-accused namely, Irshad Mahar and Ali Ahmed Ghumro have already granted post arrest bail and case of the present applicants is not much distinguish to those, whom concession of bail has been extended.

3. For what has been observed above, I have found the case against the applicants/accused to be a case calling for further inquiry into their guilt within the purview of subsection (2) of Section 497, Cr.P.C. Consequently, the instant bail application was allowed by short order dated 07.04.2017, whereby the applicants/ accused were admitted to bail subject to furnishing bail bond in the sum of Rs.500,000/- (Rupees five hundred thousand) by each of them with P.R. bonds in the like amount to the satisfaction of the learned trial Court and these are the reasons for the same.

4. The above observations are tentative in nature and shall not prejudice the case of either party at trial. It is further observed that if the applicants/ accused will misuse the concession of bail at any stage of the case; the learned trial Court is at liberty to initiate appropriate action under the law including the process of cancellation of bail without making a reference to this court. WA/S-25/Sindh Bail granted.