' Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Sikandar Hayat Maken, petitioner has sought post arrest bail.
2. The Chairman, NAB in exercise of powers vested by him under section 34-A of National Accountability Ordinance (NAO), 1999 referred the matter of Government Functionaries to the Director General, NAB, Rawalpindi for initiation of proceedings against them who are prima facie involved in the commission of offence(s) under the provisions of the National Accountability Ordinance (NAO), 1999 vide letter No.1(662)/2012/DO(R)/IM-1/NAB dated 26-1-2013. Pursuant to that, the inquiry was entrusted to the Deputy Director/Investigating Officer who after conducting the inquiry reached to the conclusion that the petitioner wilfully failed to exercise his authority and he was found guilty regarding illegal appointment of Tauqir Sadiq as Chairman OGRA. Thereafter, warrants of arrest against Sikandar Hayat Maken was issued by the Chairman NAB. According to the 'Nagai Rept' the petitioner was shown, arrested on 25-4-2013 in order to collect further evidence and recovery of certain documents. During investigation, the Investigating Officer moved application before the learned Administrative Judge, Accountability Court, Rawalpindi for remand of the petitioner which was allowed with the direction to the Investigating Officer to produce the petitioner on 3-5-2013 and on the said date, the petitioner was sent to judicial lock up and prosecution was directed to complete the investigation as early as possible.
3. Precise allegation against the petitioner is that he was part of the "Short-listing Committee" as Member and was Secretary of the Selection Committee for appointment of Tauqir Sadiq as Chairman OGRA who after appointment to the said post had caused loss of billions rupees by way of corruption to the national exchequer as he had played pivotal role in the appointment of said Tauqir Sadiq as Chairman OGRA which act falls in section 9 of the National Accountability Ordinance, 1999. Later on, the appointment of Tauqir Sadiq as Chairman OGRA was declared null and void by the august Supreme Court of Pakistan.
4. It has been contended by the learned counsel for the petitioner that the petitioner has falsely been involved by the NAB authorities; that the petitioner has joined the investigation even prior to his arrest and proved his innocence; that the accused is loyal citizen of Pakistan and performed his duty fairly and with due diligence; that arrest of the petitioner was with mala fide intention and there was no substantial evidence or reasonable grounds existed for arrest of the petitioner. Lastly contends that the petitioner is patient of blood pressure and hypertension. Reliance has been placed Muzammil Niazi v. The State (PLD 2003 Karachi 526) and The State and others v. M. Idrees Ghauri and others (2008 SCM R 1118).
5. On the other hand, learned ADPG for NAB has vehemently opposed the present petition by stating that the present petitioner was Member of the Selection Committee and he did not object or at least shown his disagreement or dissenting note regarding the unauthorized addition of the candidates in second shortlist and he remained mum on this illegality and being member of said Committee he is equally responsible for selection of Tauqir Sadiq as Chairman OGRA. The responsibility of the Selection Committee was to shortlist the candidates who fully fall under the qualification of the said post. Tauqir Sadiq was later on short-listed despite his grossly irrelevant qualification and experience as prescribed in the Ordinance and advertisement he got through with the selection process. The involvement of the petitioner in marking process during scrutiny of applicants and assigning names for short-listing is evident from the entire record and as such the Constitutional petition filed by the present petitioner is liable to be dismissed as no case of extra ordinary relief is made out.
6. We have heard the arguments advanced by the learned counsel for the parties and have gone through the record available on the file.
7. From the bare perusal of record, it revealed that for the selection of Chairman, Oil and Gas Regulatory Authority (OGRA), the Federal Government had constituted Selection Committee consisting of following members as per notification dated 5-12-2008:--
(i) Minister for Water and Power. Chairman
(ii) Secretary Cabinet. Member
(iii) Secretary (JS RA-II). Member
(iv) Additional Secretary Establishment Member
(v) Co-opted (Technical Expert) Member ' Said Committee short listed fifteen (15) candidates for the post of Chairman, OGRA and date of interview was fixed. In the said list name of Tauqir Sadiq was not mentioned and on 12-2-2009, the Prime Minister directed re-advertisement of the position of Chairman, OGRA after conducting interviews of 15 short listed candidates. On re-advertisement of position 92 applications were received, out of them 23 candidates were short listed under the Chairmanship of Atta Muhammad Raja, Additional Secretary (CMA), Cabinet Division, Sikandar Hayat Maiken, Joint Secretary (R.A)
Cabinet Division and laved Nazir, Senior Executive Director (Operation), OGRA as members and they were called for interview before the Selection Committee who approved four candidates, who were then interviewed by the Prime Minister and Tauqir Sadiq was appointed as Chairman, Oil and Gas Regulatory Authority (OGRA), vide notification dated 22-7-2009. The Hon'ble Supreme Court of Pakistan vide its judgment reported as "Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) set aside the notification of appointment of Tauqir Sadiq as Chairman OGRA and gave following observations regarding conduct of said Selection Committee:- "There are no minutes or notes to show the deliberations of the members of the Selection Committee which may suggest the basis or objective criteria for selecting the four names from amongst the 17 who were actually interviewed. However, it is evident from the record that all the short-listed candidates were interviewed on the same day. We do not have any indication as to the time spent on each interview, but since all 17 interviewees were statedly interviewed on 20-6- 2009, we can safely assume that not even 30 minutes were spent with each candidate. In these circumstances, it is difficult to see how the candidates who had submitted lengthy CVs, and were being considered for appointment to a major public office, could have been interviewed in any effective or meaningful' way."
"We can now advert to the interviews purportedly conducted by the Selection Committee. It is apparent from the record that they served no real purpose. There was merely an appearance of due process but, in reality, there was no rigour or due diligence discernable at all. The interviews had no clear nexus with judging the objective criteria requiring by tfre Ordinance and by the advertisement for the post i.e. Determining (i) if the candidate was highly qualified (ii) whether he was a person of known competence (iii) if he was of known integrity. We make this observation based on the record and while remaining cognizant that the power of appointment is vested in the Executive.
8. The contention that no overt act of any sort is assigned to the petitioner, is devoid of force. The petitioner had played pivotal role being a part of both short listing Committee and being aware of non-eligibility of Tauqir Sadiq. The petitioner along with other members of the Committee gave justification of recommendations in respect of Tauqir Sadiq as, "20 years experience in the field of law, sufficient experience in handling cases of Corporate Law in the private as well as public sectors served as Registrar in OGRA from 2002 to 2006, presently working with noble group of companies." The petitioner had A not objected on the illegality committed by the Selection Committee and the act of the petitioner falls under section 9(a)(vi) of National Accountability Ordinance, 1999 and that during the period Tauqir Sadiq remained Chairman caused a loss in excess of Rs.82 Billion to OGRA and the National Ex-chequer directly. Prima facie, the petitioner has played a significant role in the process of selection of said Tauqir Sadiq as Chairman OGRA and his culpability for malfeasance, non-feasance is IA proved during investigation by the Investigating Officer.
9. Keeping in view the above facts and circumstances of the case, we have not been persuaded to hold that the petitioner has made out a case for his enlargement on post-arrest bail. The case law cited by the learned counsel for the petitioner is distinguishable to the facts and circumstances of the case.
10. In view of the above discussion, the Constitutional Petition is hereby dismissed having no merits.
The observations made hereinabove B are of tentative in nature and the trial Court shall not be influenced.