QAISER RASHID KHAN, J.---Through the present constitutional petition, the petitioner seeks bail in case Reference No.1/2014 pending trial before the learned Accountability Court-III Peshawar.
2. Briefly stated facts leading to the instant petition are that the petitioner is the Managing Director of a Partnership Firm namely, Messrs Abdali Brothers registered with the Pakistan Engineering Council as a Contractor and had offered bid pursuant to tender notice published by the Project Director 'Foreign Aided Projects Works and Services Department N.-W.F.P. (KPK) for the rehabilitation of road works from Lahore to Adina Sections I and II (District Swabi) which were accordingly awarded to him vide notification dated 20-1-2007. After the completion of the subject works, the Project Consultant being the team leader, recommended for the issuance of Substantial Completion/Taking Over Certificate for both sections with effect from 31-12-2009 vide letter dated 14-1-2010. Thereafter the Project Consultant asked the petitioner for additional overlay of 50-mm thick Asphalt Concrete Wearing Course at the original B.O.Q. Rates of Rs.7,500 per cubic meter to which the petitioner expressed his inability at the said rates in view of the shifting of the machinery from the site and offered to do the same work at approximately Rs. 13,500 per cubic meter which was finally agreed upon between the parties with their mutual consent at Rs.12,081 per cubic meter and the additional works were accordingly completed on 31-12-2010 and completion certificates were accordingly issued to the petitioner. However, on 25-2-2013, the petitioner was issued with a notice for Voluntary Return in view of the substandard construction of Lahor Adina. Road District Swabi. Thereafter the petitioner was served with a Call Up notice dated 22-5-2013 and after appearing before the respondents on 28-5-2013, the respondents demanded an amount of Rs.26 Million as Voluntary Return without any justification and finally the petitioner was arrested on 28-5- 2014, hence, the present petition for his release on bail.
3. Learned counsel for the petitioner dilated at length on the various aspects of the case and in the process led us through several documents annexed with the petition. They vehemently argued that the petitioner has not committed any act of corruption or corrupt practices which could have prompted the NAB authorities to nab him. They contended that the petitioner in all fairness and earnest offered his services to do the rehabilitation of road works from Lahor to Adina sections I and II, Swabi in response to tender notice published in the local dailies and vide notification dated 20-1-2007, the job was assigned to him which the petitioner completed to the fullest satisfaction of the Project Director/Team Leader and the employer and to this effect Substantial Completion/Taking Over Certificate for both sections was issued to him. They next contended that it was after six months of the taking over of the subject road by the employer when the Project Director requested the petitioner for additional overlay of 50-mm thick Asphalt Concrete as proposed by the Design Engineer and to do the work at Rs. 7,500 per cubic meter which was not acceptable to the petitioner in view of the shifting of machinery and escalation in the prices and thus he offered to do the same at Rs. 13,500 per cubic meter which finally after mutual agreement and understanding boiled down to Rs.12,081 per cubic meter and the job was satisfactorily performed when the work done was handed over to the employer as far back as on 31-12-2010 but then after over two years, the petitioner received a notice on 25-2-2013 regarding voluntary return on account of substandard construction of the said road which in itself smacks of mala fide and witch-hunt at the respondents' end. The learned counsel argued that this being a foreign aided project is governed by the FIDIC Form of Contracts which is the French acronym for the International Federation of Consulting Engineers and the NAB authorities have displayed absolute naivety in not comprehending such form of contracts and thereby have harassed, humiliated and attempted to blackmail the petitioner into total submission to meet their demand of voluntary return of an exorbitant amount. In order to bring home the FIDIC model of contract and the conditions enjoined therein, the learned counsel referred to letter dated 22-3-2013 on behalf of Pakistan Engineering Council to the Project Director Project Management Unit C&W Department Khyber Pakhtunkhwa Peshawar wherein it has been noted that "pursuant to clause 12.3, Conditions of Contract, new rates for works items can be determined by the engineers on the conditions mentioned therein." They also referred to the opinions sought from the NHA dated April 12, 2013 and in the same manner from other related specialized authorities as well. They urged that as the Project Director and the Consultant have returned various amounts under the V.R formula to the NAB authorities, therefore, the petitioner too, is being pressed hard by the respondents to pay a colossal sum of over 22 Million to them without any legal justification and that is how a reference has been filed against him. They lastly contended that the available record suggests that the alleged offence, for which the accused-petitioner has been charged, does not fall within the definition of corruption and corrupt practices and thus he deserves to be enlarged on bail and that too, in view of the fact that the trial of the case before the learned Accountability Court would consume sufficient time. The learned counsel placed reliance on 2014 PCr.LJ 186 (Karachi), 2014 MLD 276 (Karachi and 2011 MLD 602 (Karachi).
4. The learned DPG on his turn opposed the bail petition of the petitioner tooth and nail and contended that the petitioner being the contractor did not live up to the terms of the contract documents with the government and did a substandard work on the Lahor - Adina Road, Swabi and since he was hands in glove with the Project Director (Employer) as well as the Consultant, therefore, his activities went unchecked and a so-called completion certificate was given to him initially and thereafter, as against Rs.7,500 per cubic meter for the additional overlay work of Asphalt, an exorbitant amount of Rs.12, 081 per cubic meter was agreed upon which in the process not only gave a substandard road to the locals of the area but also caused a huge loss to the government exchequer and that is how the petitioner along with the Project Director and Consultant were issued with notices for the Voluntary Return of the ill-gotten money which they had received. He contended that as against the petitioner, the Project Director and the Consultant readily accepted their guilt and deposited an amount of Rs.15.0944 Million by way of Voluntary Return which shows the involvement of the petitioner in the commission of the offence and hence, he is not entitled to bail.
Arguments heard and available record perused.
5. As laid down in detail in the preceding paras, the grievance of the petitioner has its roots in the contract awarded to his Partnership Firm namely, Abdali Brothers, by the Project Director Foreign Aided Projects Works and Services Department N.-W.F.P (KPK) for the rehabilitation of road works from Lahor to Adina sections I and II, District Swabi way back on 20-1-2007. According to the petitioner, the work stood completed on 14-1-2010 and a completion certificate to this effect was issued to him whereafter he was asked to do an additional overlay of 50-mm thick Asphalt Concrete Wearing Course as per the proposal of the Design Engineer on the original B.O.Q (Bill of Quantities) Rates of Rs. 7,500 per cubic meter and which being not acceptable to him was finally agreed upon at the rate of Rs. 12,081 per cubic meter.
6. In the comments furnished by the respondents, it has been stated that the additional overlay of 50-mm was proposed on account of the dilapidated state of the constructed road and that too, due to deviation from the original design. What prompted the Project Director to go for such escalation in rates from Rs.7,500 per cubic meter to Rs.12,081 per cubic meter at the instance of the petitioner and that too, after a brief span of six months per se points an accusing finger towards the involvement of the troika i.e., the Project Director, Consultant and the present petitioner being the contractor of the project in this sordid case of corruption which was carried out with a degree of finesse whereby they not only swallowed crores of rupees but in the process also gave the alleged substandard road to the people of the area. While sitting in our constitutional jurisdiction, this court is not supposed to go into the technicalities, on ground alleged substandard condition of the road as such niceties would be looked into by the learned trial Court during the course of recording of evidence. However, given the fact that the two members of the troika i.e. The Project Director and Consultant accepted their guilt and also coughed up their respective shares to the respondents by way of Voluntary Return, a prima facie case exists against the petitioner as well which squarely falls within the domain of corruption and corrupt practices and hence, he is held disentitled to the concession of bail.
Accordingly, this writ petition for bail being devoid of any merit is dismissed.
Before parting with this order, it is directed that any observation recorded in the above order is based on the tentative assessm ent of the available record which should in no manner prejudice the proceedings before the learned trial court where the case be decided on its own merits after recording the evidence.