Mian Hamid Farooq, J.--Afzal Motors Company (Pvt.) Limited, the petitioners, seek leave to appeal against short order dated 12.08.2008, followed by the reasoned order dated 25.08.2008, whereby the learned Division Bench of the High Court of Sindh at Karachi dismissed their constitutional petition (C.P.No, D-1142 of 2008) in limine.
2. Respondent No, 3 invited sealed bids, through advertisement in the newspapers, inter-alia, for supply of 25 buses (Item No, 9) for the Sindh Police Department, to be entered by 15th of March, 2008 containing separately financial and technical proposals. Pursuant thereto, the petitioners and Respondents No, 4 to 6 submitted sealed bids, which were opened on 15.03.2008 and all the four technical bids were found to be correct, however, the date for opening of financial bids was to follow. According to the petitioners, they had offered lowest bid for the supply of buses and were the best bidder, but they subsequently learnt that the contract was awarded to Respondent No, 4, which had quoted the highest-rates. The petitioners, deeming that they being the lowest bidder had acquired a right for award of contract for supply of buses and that the award of contract to Respondent No, 4 is a mala fide and unjust, instituted a constitutional petition (C.P.No, D-1142 of 2008) in the High Court of Sindh at Karachi, which called for comments from the respondents.
Respondents No, 2 & 3 also filed the counter-affidavit asserting that the contract was awarded to M/s. Hinopak after completion of all the formalities and the motor buses were also supplied by the said M/s. Hinopak. The learned Division Bench of the High Court of Sindh at Karachi after hearing the parties dismissed the said constitutional petition, vide short order dated 12.08.2008, which was followed by the reasoned order dated 25,08.2008, hence the present petition.
3. Learned 'counsel for the petitioners contented, that the petitioners quoted lowest rates and were the best bidders, therefore, they acquired a right for the award of contract and award of contract to Respondent No, 4 was mala fide, unjust and unfair, He further submitted that this is a case of blatant mala fide on the part of the respondents and under the circumstances the learned High Court, by dismissing petitioner-Company's constitutional petition, refused to exercise, its constitutional jurisdiction of judicial review. He added that the actions of the respondents offended Article 18 of the Constitution of Islamic Republic of Pakistan, which provides a fundamental right qua freedom of trade, business or profession. He relied upon 'Muhammad Afzal v. Shahzad Asghar Dar (PLJ 2003 SC 241), Ittehad Cargo Service v. Syed Tasneem Hussain Naqvi (PLD 2001 Supreme Court 116), Airport Support Service v. Airport Manager (1998 SCM R 2268), Pacific Multinational (Pvt.)
Ltd. v. LG. of Police (PLD 1992 Karachi 283), Riaz Ahmed u. Regional Transport Authority (1992 M LD 1882) and Petrosin Products Pak. (Put.) Ltd. v. Federation of Pakistan (2001 CLC 820)".
4. We have heard the learned counsel and examined the available record. Learned counsel has time and again stressed that the actions, including award of contract to Respondent No, 4, of Respondents No, 2 & 3 and other public functionaries, were male fide and the entire process in the said direction was not transparent. However, he when asked to show from the record as to how the actions of the respondents were mala fide could not point out any document on record to demonstrate that in fact the public functionaries, while initiating, processing and awarding contract to the Respondent No, 4, acted in a male fide manner. We also could not find out any document on record which could tend to show that the actions of the respondents were tainted with malice or the process starting from the invitation of tenders till award of contract was either male fide or non-transparent. Simply to level vague and unsubstantiated allegation of mala fide on the A part of the public functionaries does not advance the case of the petitioners. It is very easy for a litigant to allege male fide but it is very difficult to prove it. It has now fairly been settled that the allegation of male fides requires proof of a high order and the burden of proof lies on the person who makes it. Reference can be made to "Federation of Pakistan v. &wed Ahmed (PLD 1974 Supreme Court 151), "Shabbir Hussain v. Registrar, Lahore High Court (PLD 2004 Supreme Court 191) and Hazara (Hill Tract) Improvement Trust v, Qaisara Elahi (2005 SCM R 678). According to our assessm ent of the case male fide on the part of the Respondents No, 2 & 3 and other public functionaries is not apparent on the face of the record. It appears appropriate to reproduce a relevant portion of the impugned judgment, which reads as under: "It is further the case of the said respondents that all the bidders at all the material times were duly informed about the progress and regular meetings were held with their representatives and that even prior to the award of the contract in favour of M/s. Hinopak, the information regarding award of contract was duly displayed on the notice board at public place in the Central Police Office, which was visited by representatives of all participating firms and that the bid offered by M/s. Hinopak was found to be best evaluated one and no loss is caused to the public exchequer, as the quality and durability of buses of M/s. Hinopak is far superior that that of petitioners in terms of cost benefit ration and further that the technical evaluation and purchase committee had considered all the aspects of all the bidders and had come to the conclusion that M/s. Hinopak was best suited to the needs of the police department."
In this case, too the petitioners though levelled serious allegations of mala fides against Respondents No, 2 & 3 before the learned High Court and before this Court, but they miserably failed to place on record. any document or to pinpoint any action which could even prima-facie prove mala fides on the part of Respondents No, 2 & 3.
5. Respondents No, 2 & 3 filed counter-affidavit before the learned High Court, inter-alia, pleading that the agreement with M/s. Hinopak (Respondent No, 4) was executed on 06.05.2008, motor buses were supplied to the Police Department, inasmuch as, the payment was made to the supplier. We find from the record that the contract was based on the recommendations of the purchase committee, which after evaluating the manufacturing facility, backup support and considering other allied matters came to the conclusion that the contract is to be awarded to M/s. Hinopak. According to the own showings of the petitioners, they filed constitutional petition on 02.06.2008, while contract was awarded to M/s. Hinopak on 06.05.2008, meaning thereby that at the time of filing the constitutional petition the entire process of award of contract stood accomplished. It is now an admitted fact that the requisite buses were supplied by M/s. Hinopak to the Police Department and the payment was made to the supplier. Since the entire process in this regard had already been finalized, therefore, we are not persuaded to reverse it and re-open the matter which has attained the status of a past and closed transaction. Under the circumstances, we have no reasons to topsy-turvy the entire process, which has reached its climax and is now a closed chapter.
6. According to the petitioners, they offered the lowest rate and were declared qualified in technical round of tenders. Admittedly, the purchase committee did consider the said aspects of the case, however, after considering different pros and cons of the matter, inter-alia, concluded that buses to be supplied by M/s. Hinopak were ready to deliver and that spare parts thereof were available everywhere in the country. The purchase committee in its wisdom finally assessed that M/s. Hinopak is the best suited bidder to supply buses. We, under the circumstances, are not persuaded to sit on the findings of the purchase committee, which concluded the questions of fact after considering all relevant factors.
7. In the above perspective, we have examined the impugned judgment and feel that under the circumstances, the learned High Court did not commit any legal infirmity. No misreading or non- reading of the record of the case has been pointed out. We are not persuaded to upset the well reasoned judgment, which is hereby maintained.
8. In view of the above, the present petition, being devoid of any force, stands dismissed and leave to appeal is refused.