O R D E R NAIMATULLAH PHULPOTO, J.--- Through instant constitution petition, petitioner Shoaib Warsi seeks bail in Enquiry/Case No.242118-Khi, initiated against Dr. Asim Hussain and others for misuse of authority and corruption in Sui-Southern Gas Company Limited (SSGCL).
2. Brief facts are that in pursuance to the Notification No.2(12)2012-Gas dated 16.07.2014 issued by the Ministry of Petroleum and Natural Resources, Islamabad, Zuhair Siddiqui, Managing Director, Sui Southern Gas Company Limited handed over the charge of Managing Director, SSGCL to petitioner Shoaib Warsi, Senior General Manager, SSGCL. It is alleged that after taking over the charge of Managing Director, SSGCL, he illegally signed "Record of Discussion/Agreement" dated 24.10.2015 through which he allowed JJVL unauthorizedly to make payment at their own accord. It is alleged that he willfully failed to protect the interest of public exchequer by giving undue benefits to JJVL in respect to timely recovery of due amount/cost of retained LPG and NGL. It is further alleged that petitioner in the capacity of Managing Director, SSGCL vide Note for Director dated 04.11.2014, by concealing the actual facts, illegally recommended retention of more than 50% extracted LPG to JJVL. It is also alleged that accused being Managing Director, in active connivance with other accused/officials of SSGCL and JJVL, illegally allowed retention of 100% extracted NGL, worth billions of rupees to JJVL without provision of MoU, which resulted into the loss of billions of rupees to the public exchequer. Inquiry against Dr. Asim Hussain, Ex-Minister of Petroleum and others was initiated in which petitioner was arrested on 26.11.2015 by NAB for the purpose of inquiry. After arrest of the petitioner/accused he was produced before learned Administrative Judge, Accountability Courts, Sindh at Karachi and the petitioner is presently under remand of NAB. Case is under investigation.
3. Mr. Khawaja Shamsul Islam, learned counsel for the petitioner, contended that Rangers officials had picked up the petitioner 15 days before the date of arrest in this inquiry. It is argued that petitioner has no concern with Dr. Asim Hussain and others and detention of the petitioner is illegal.
It is further argued that no incriminating material has been collected by the investigation officer to connect the petitioner in the commission of offence. It is argued that no Memo of Understanding was signed by the petitioner; no benefit was extended by the petitioner to Dr. Asim Hussain and others. It is argued that petitioner Shoaib Warsi was not the Managing Director of SSGCL at the relevant time when the corruption has been alleged by the NAB. Lastly, it is argued that petitioner is entitled for grant of bail. In support of his contentions, he relied upon the cases reported as Sh.
RIAZ-UL-HAQ and another versus FEDERATION OF PAKISTAN through Ministry of Law and others (PLD 2013 Supreme Court 501), MUHAMMAD AFZAL versus NATIONAL ACCOUNTABILITY BUREAU (SINDH) and 4 others (2015 P Cr. L J 1496), ABDUL QADIR versus FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and others (2002 SCMR 1478), ANWAL-UL-HAQ QURESHI versus NATIONAL ACCOUNTABILITY BUREAU and another (2008 SCMR 1135), ZAIGHAM ASHRAF versus The STATE and others (2016 SCMR 18), Raja MUHAMMAD ZARAT KHAN and another versus FEDERATION OF PAKISTAN and 2 others (PLD 2007 Karachi 597) and Syed MANSOOR ALI and others versus CHAIRMAN, NAB and others (PLD 2016 Sindh 41).
4. Mr. Muhammad Altaf, learned Special Prosecutor NAB, assisted by Mr. Muhammad Qasim, learned Standing Counsel, argued that petitioner in the capacity of Managing Director, SSGCL illegally allowed JJVL to retain extracted LPG and NGL. It is also contended that petitioner/accused after taking over the charge of Managing Director, SSGCL, illegally signed record of discussion/agreement dated 24.10.2014 through which he allowed JJVL unauthorizedly to make payment at their own. It is submitted that petitioner willfully failed to protect the interest of public exchequer thereby extended undue benefits to JJVL in respect of timely recovery of due amount/cost of retained LPG and NGL. It is also contended that petitioner in his capacity as Managing Director, SSGCL, illegally recommended retention of more than 50% extracted LPG to JJVL. It is argued that since November 2014, more than 60% of LPG has been illegally retained by JJVL being the share of SLL. It was further argued that petitioner as Managing Director, SSGCL, in active connivance with other accused officials of SSGCL and JJVL, illegally allowed retention of 100% extracted NGL worth billions of rupees to JJVL without any provision of MoU, which resulted into loss of billions of rupees to the public exchequer. Learned Special Prosecutor, NAB has also referred to the 161, Cr.PC statements of PWs Khalid Saleem Ansari, DGM Legal/Contracts, Shakeel Ahmed Bukhari, Senior General Manager, Distribution South and GM Liquefied Gases, Adnan Saghir Siddiqui, General Manager, Transmission, SSGCL, Karachi and others and argued that these PWs have implicated the petitioner in this case. Lastly, argued that yet investigation officer has to collect record and matter is under investigation and this is pre-mature stage to consider the plea of bail.
In support of contentions, reliance is placed upon the cases reported as AKHTAR ALI MAHOTO and another versus NATIONAL ACCOUNTABILITY BUREAU (2004 MLD 2039 [Karachi], GHULAM HYDER JAMRO and another versus CHAIRMAN, NAB (2007 YLR 541), Ch. MUHAMMAD ASHFAQ versus The STATE and others (2015 SCMR 1716) and Mrs. RIAZ QAYYUM versus THE STATE and another (2004 SCMR 1889).
5. We have carefully heard the learned counsel for the parties and perused the relevant record.
6. It appears that inquiry has been initiated against Dr. Asim Hussain and others for misuse of authority and corruption in SSGCL. During inquiry, statements of PWs have been recorded. PW Adnan Saghir Siddiqui, General Manager, Transmission SSGCL, Karachi in his 161, Cr.PC statement has stated that Shoaib Warsi has remained Senior General Manager (Transmission) during 2013 to 2014. Petitioner being General Manager (Transmission) initiated letter dated 02.10.2013 addressed to SGM (ES) which was approved by Zuhair Siddiqui, the then Managing Director, SSGCL on 14.10.2013.
He has further stated in his statement that main CMS station/metering station of KPD, Badin and Bobi Gas Fields are installed inside the JJVL premises and extraction of KPD, Bobi and Badin Gas Fields are continued. PW-Khalid Saleem Ansari in his 161, Cr.PC statement has stated that as per contents of MoU, it was an interim arrangement till the finalization of tendering process but tendering process has not yet been completed. PW Shakeel Ahmed Bukhari in his 161, Cr.PC statement has stated that MoUs were signed for interim period till completion of tendering process, which was required to be completed within 30 days but petitioner could not materialize the process of tendering. Later on, the same was cancelled by him. It is submitted that tendering process was initiated during the tenure of petitioner Shoaib Warsi. Investigation Officer has also collected documentary evidence to connect the petitioner in this case. It is alleged that after taking over the charge of Managing Director, SSGCL, petitioner illegally signed Record of Discussion/Agreement dated 24.10.20145 through which he allowed JJVL unauthorizedly to make payment at their own accord. Thus, it is alleged that he willfully failed to protect the interest of public exchequer by giving undue benefits to JJVL in respect to timely recovery of due amount/cost of retained LPG and NGL. It is also alleged that petitioner in the capacity of Managing Director, SSGCL vide Note for Director dated 04.11.2014, by concealing the actual facts, illegally recommended retention of more than 50% extracted LPG to JJVL. It is also alleged that accused being Managing Director, in active connivance with other accused officials of SSGCL and JJVL, illegally allowed retention of 100% extracted NGL, worth billions of rupees to JJVL without provision of MoU, which resulted into the loss of billions of rupees to the public exchequer. As regards to contention of learned counsel for petitioner that 161, Cr.PC statements of PWs are not reliable, in our considered view, deeper appreciation of such material/evidence is not permissible at bail stage but only tentative assessm ent of the same is to be made for deciding the bail application as held by the Honourable Supreme Court of Pakistan in the case of Mrs. RIAZ QAYYUM versus THE STATE and another (2004 SCMR 1889). The relevant portion is reproduced as under:- "It is settled principle of law that an elaborate sifting of evidence cannot be made at the time of deciding bail application but only tentative assessment of the same is to be made. Thus, prima facie, there appears to be a reasonable ground disentitling the petitioner's husband, namely, Khaliffa Abdul Qayyum, to the concession of bail."
7. Learned Division Bench of this Court in the case of GHULAM HYDER JAMRO and another versus CHAIRMAN, NAB (2007 YLR 541) has observed as under: "9. Indeed jurisdiction of this Court under Article 199 of the Constitution to grant bail to the accused involved in the NAB cases is not barred by virtue of section 9(b) of the Ordinance, 1999 in view of the dicta laid down in the case of Khan Asfandyar Wali (supra) and subsequent amendment to section 9(b) itself, but before exercising our constitutional jurisdiction for this purpose, we have to see whether such powers should be exercised so liberally as to totally nullify and make the provisions of section 9(b) redundant which on one end makes all the offences triable by the Accountability Courts non-bailable and on the other hand bars the applicability of sections 497, 498 and 561-A, Cr.P.C. by the Courts for grant of bail to accused involved in such cases.
10. Keeping in view the above discussion and the fact that the petitioners have been assigned the pivotal role in the commission of crime, they have been recently sent-up for trial before the Accountability Court through Reference No.10 of 2006; and prima facie prosecution has shown their involvement in the commission of crime, causing huge financial loss to the national exchequer, we are not inclined to extend the relief of bail to them at this stage accordingly, these two petitions are dismissed in limine."
8. In the case of Ch. MUHAMMAD ASHFAQ versus The STATE and others (2015 SCMR 1716) Honourable Supreme Court of Pakistan has observed as under: "10. At the moment, as stated at the bar, more than 50 complaints of similar nature have been lodged against the petitioner, which are still under inquiry/investigation thus, on the available record, the petitioner appears to be a member of a gang of swindlers involved in deceptive tactics, depriving poor and needy people of their hard earned money, who attached high hopes, reposing confidence in the petitioner and his accomplices that they would provide lucrative and good earning job in return. The device and well-designed strategy attributed to the petitioner and his accomplices, if is allowed to go unchecked, the same is likely to corrupt the whole society and would encourage the others to indulge in the same and similar practice.
In the above background, the discretion vested in the learned High Court and the trial Court in refusing to grant bail has been exercised according to the well settled principle on the subject, to which no exception could be taken."
9. Thus, prima facie, there appears to be reasonable ground to connect the petitioner in the commission of offence. Moreover, investigating officer submits that yet he has to record statements of the other persons and to collect the record as the matter is under investigation. As such, petitioner/accused is disentitled to the concession of bail. Accordingly, instant constitution petition being devoid of force is dismissed.
10. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence trial Court while deciding the case of the petitioners/accused on merits.
Constitution petition stands disposed of.