Through this single order, we proceed to decide the instant petition i,e, Writ Petition No,244287 of 2018 (Engr. Raja Qamar Ul Islam v. National Accountability Bureau and others) as well as Writ Petition No,242354 of 2018 (Waseem Ajmal v. Chairman NAB and others), Writ Petition No,259386 of 2018 (Muhammad Younas v. Director General NAB and others), Writ Petition No,3394 of 2019 (Muhammad Moeen-Ud-Din v. Director General NAB and others), Writ Petition No,256528 of 2018 (Maj. (R) Adnan Aftab Khan v. Director General NAB and others), Writ Petition No,257523 of 2018 (Syed Masoud Ul Hassan Kazmi v. National Accountability Bureau and others) and Writ Petition No,185 of 2019 (Zahoor Ahmed Dogar v. National Accountability Bureau and others), as in all these petitions, common questions of law and facts are involved and all these petitions have arisen out of the same NAB Reference No,93 of 2018. In all the said petitions, the petitioners have prayed for their release on post arrest bail in the above NAB, reference.
2. The allegations against Engineer Raja Qamar Ul Islam, petitioner (accused No, 1 in the reference) have been mentioned in Para-11 of the reference and the same read as under:- "That the accused No,1, being convener of Procurement Committee, willfully failed to exercise his authority and ensure due diligence in award of contract to Messrs KSB Pumps. He being convener/member Procurement Committee misused his authority and accepted allegedly negotiated bid price of KSB Pumps under garb of rationalization and malafidely and dishonestly recommended for approval of award of contract to KSB Pumps for installation of water filtration plants on the basis of unapproved Engineering Cost Estimates prepared at exorbitant rate. He also dishonestly recommended for approval from Board of Directors (BoD) regarding unsolicited proposal submitted by contractor KSB Pumps after opening of Bids in violation of Punjab Procurement Rules, 2014 and laid the basis of issuance of illegal addendum of 36x grid-based water filtration plants in violation of Punjab Procurement Rules, 2014 and thus has committed a culpable act under section 9 of the N.A.O., 1999."
3. The allegations against Waseem Ajmal/petitioner (accused No,2 in the reference) have been mentioned in Para-12 of the reference and the same read as under:- "That the accused No,2, being Chief Executive Officer PSPC (South) dishonestly and malafidely made post bid changes in violation of Punjab Procurement Rules, 2014, illegally got approved and signed addendum of 36x additional water filtration plants to the original contract in order to give undue benefit to the Contractor, KSB Pumps at the cost of Public Exchequer. He malafidely caused loss of amounting Rs,10.855 Million to the National Exchequer by illegally approving variation order No,5 submitted by Contractor, KSB Pumps for application of weather shield paint at external walls of plant rooms at exorbitantly higher rates. He willfully failed to exercise his authority in preparation of Engineering Cost Estimates, seeking approval of technical sanction from Competent Authority and initiation of re-tender for installation of 36x additional water filtration plants in Bahawalpur Region, thus he misused his position and authority."
4. The allegations against Zahoor Ahmad Dogar/petitioner (accused No,4 in the reference) have been mentioned in Para-14 of the reference and the same read as under:- "That accused No,4 recommended award of contracts to KSB Pumps without getting approval Engineering Cost Estimates. Moreover, the accused No,4 attended 9th Meeting of Procurement Committee held on 08-05-2015, in which award of contract to KSB Pumps at an illegally negotiated bid price of Rs,989 Million was recommended to Board of Directors for approval, he therefore, has acted in a manner contrary to law.
5. The allegation4 against Major (Retd.) Adnan Aftab Khan, Syed Masoud Ul Hassan Kazmi, Muhammad Moeen-ud-Din and Muhammad Younas, petitioners (accused Nos,15, 16, 17 and 18 respectively in the reference) have been mentioned in Paras Nos,23 and 24 of the reference and the same read as under:- "That the accused Nos,13 to 18 willfully failed to exercise their authority in preventing loss to the State Exchequer amounting Rs,40.385 Million on account of defective/substandard civil works executed in installation of water filtration plants in Tehsils of Bahawalpur region."
That accused Nos,2, 19 and 20 on the recommendation of accused No,15 caused loss in the National Exchequer to the tune of Rs, 10.855 Million by approving exorbitant rate or weather shield paint through variation order No,5 instead of distemper.........)"
6. All the petitioners were holding different posts in the Punjab Saaf Pani Company (PSPC) South at the relevant time. The company (PSPC) was established to provide, affordable hygienic good quality safe drinking water to the people living in semi-rural and peri-urban areas of the province of Punjab. The petitioners were arrested by the NAB authorities on account of alleged different irregularities/illegalities committed by them in awarding of contract to KSB Pumps for installation of water filtration plants in Bahawalpur Region and due to the defective/substandard civil works in installation of water filtration plants in the above region.
7. All the petitioners have been sent to the judicial lockup and thereafter they filed the abovementioned petitions before this Court for grant of post-arrest bail.
8. Learned counsel for the petitioners contends that the petitioners are absolutely innocent and they have falsely been implicated in this case; that there is no allegation against the petitioners that any of them received any illegal gratification, kickback, commission or bribe; that no illegality has been committed in awarding the contract to KSB Pumps as the said company was the lowest bidder; that amount of bid furnished by KSB Pumps was reduced from Rs, 1.14 billion to Rs,995 million and the same was subsequently further reduced with the hectic efforts of Waseem Sajjad, petitioner who was the Chief Executive Officer of PSPC and Engr. Qamar-ul-Islam Raja (petitioner) who was convener/member Procurement Committee of PSPC at the relevant time; that all the rules and regulations on the subject were strictly followed by the petitioners and all the decisions were taken unanimously by the Board of Directors of the Company; that out of twenty members of the Board of Directors of the Company who approved contract in favour of KSB Pumps, only two Directors, namely, Engineer Qamar-Ul-Islam Raja and Waseem Ajmal (petitioners) have been made accused in this case which speaks of malafidies of the NAB; that there is no allegation that any of the petitioners received any kickback, bribery or illegal gratification; that the petitioners have been made scapegoats in this case by the NAB authorities; that the co-accused of the petitioners, namely, Nasir Qadir Bhadal, Ex-Chief Procurement Officer/Ex-Chief Financial Officer, Punjab Saaf Pani Company (South), Muhammad Waris Malik, Ex-Manager Projects and Capital Works-2 Punjab Saaf Pani Company (South), Muhammad Saleem Akhtar, Ex-Procurement and Contract Specialist, Engineering Consultancy Services of Punjab (Pvt.) Ltd., Khalid Nadeem Bukhari, Ex-Director/Deputy Secretary Housing and Urban Development and Public Health and Engineering Department and Muhammad Masud Akhtar, Ex-Managing Director KSB Pumps have already been granted post arrest bails by this Court vide orders dated 26.09.2018 in Writ Petition No,226785 of 2018, order dated 19.07.2018 in Writ Petition No,212612 of 2018, order dated 19.07.2018 in Writ. Petition No,221652 of 2018, order dated 19.07.2018 in Writ Petition No,220635 of 2018, order dated 19.07.2018 in Writ petition No,220599 of 2018 respectively, whereas the case of the present petitioners is at par, rather the same is at better footing as compared to the case of abovementioned co-accused, therefore, the present petitioners are also entitled to the relief of post arrest bail; that at the time of decision of the abovementioned bail petitions of the co-accused, this Court has categorically observed that total plants installed in different Tehsils and. Districts of Bahawalpur and Multan Divisions have been functioning propetry, therefore, the question of defective/substandard installation of plants does not arise in this case; that keeping in view the abovementioned facts, these petitions may be accepted, and the petitioners may be released on post-arrest bail.
9. On the other hand, it is contended by the learned Special Prosecutor for NAB that during the course of inquiry/investigation conducted by the NAB, it was found that PSPC (South) awarded contract for installation of 84-water filtration plants at exorbitant rates in Bahawalpur and Multan Divisions; that the contract was awarded to KSB Pumps without approval of engineering cost estimates and technical sanctions; that Waseem Ajmal (petitioner) and Engr. Qamar-ul-Islam Raja (petitioner) made post bid changes in the bid amount which were violative of the Punjab Procurement Rules, 2014; that moreover the solar plants were illegally removed from the projects and area of the plants was also illegally reduced from 15-marlas to 5-marlas by the petitioners, without any approval of the Board of Directors of PSPC; that even the mode of construction of plant rooms was changed from concrete to pre-fabricated construction; that Tehsil Dunyapur was not included in the priority list of Tehsils but even in the said Tehsil water filtration plants were installed by the petitioners; that NAB has now obtained fresh reports regarding the quality of the surface water and the engineering cost or quality of water at Lahore and Bahawalpur which has established that filtration plants were installed in Bahawalpur region at a very high cost; that although, the abovementioned co-accused of the petitioners have been granted post-arrest bails by this Court but the NAB has already challenged their bail granting orders before the Hon'ble Supreme Court of Pakistan; that the petitioners have committed very heinous offences, therefore, their petitions may be dismissed.
10. Arguments heard. Record perused.
11. We have noted that co-accused of the petitioners, namely, Nasir Qadir Bhadal, Ex-Chief Procurement Officer/Ex-Chief Financial Officer, Punjab Saaf Pani Company (South), Muhammad Waris Malik, Ex-Manager Projects and Capital Works-2 Punjab Saaf Pani Company (South), Muhammad Saleem Akhtar, Ex-Procurement and Contract Specialist, Engineering Consultancy Services of Punjab (Pvt.) Ltd., Khalid Nadeem Bukhari, Ex-Director/Deputy Secretary Housing and Urban Development and Public Health and Engineering Department and Muhammad Masud Akhtar, Ex-Managing Director KSB Pumps have already been granted post arrest bails by this Court on merits vide orders dated 26.09.2018 in Writ Petition No,226785 of 2018, order dated 19.07.2018 in Writ Petition No,212612 of 2018, order dated 19.07.2018 in Writ Petition No,221652 of 2018, order dated 19.07.2018 in Writ Petition No,220635 of 2018, order dated 19.07.2018 in Writ Petition No,220599 of 2018, respectively. The case of the present petitioners is at par with the case of abovementioned co- accused, who, have already been granted post-arrest bails by this Court, therefore, the petitioners are also entitled to the grant of post-arrest bails on the principle of consistency. Reliance in this context may be placed on the cases of "Muhammad Daud and another v. The State and another"
(2008 SCMR 173), "Muhammad Fazal alias Bodi v. The State" (1979 SCMR 9) and "Fazil Khaliq alias Hafiz v. The State through Advocate-General, N. W. F. P. Peshawar and another" (1996 SCMR 364).
The Ex-Managing Director of KSB Pumps, namely, Muhammad Masud Akhtar who could be the main beneficiary in this case has already been granted post-arrest bail by this Court, therefore, the petitioners cannot be denied the relief of post-arrest bail on the ground that they illegally awarded contract for installation of filtration plants to the abovementioned co-accused.
12. We have also noted that there is absolute.), no allegation against the petitioners that they received any commission, kickbacks, illegal gratification while awarding contract in question to KSB Pumps. There is nothing on the record that a single penny was paid to the petitioners or transferred in their accounts or in the accounts of their relatives or friends. Similarly, there is no allegation that any moveable or immovable property was transferred in the names of the petitioners, their relatives or their friends. The main allegation against the petitioners is that through post-bid negotiations they reduced the bid price of the contract from Rs,1.14 billion to Rs,989 millions through negotiations with KSB Pumps in order to adjust the bid price with engineering cost estimates of Rs,995 millions. There is no dispute that KSB Pumps was the lowest bidder in this case who furnished bid of Rs, 1.14 billion however, the petitioners immediately after the opening or the bid, through post-bid negotiations got reduced the bid price from Rs,1.14 billion to Rs,989 millions. The engineering cost estimate of the project was admittedly Rs,995 million. It is also an admitted fact that under the relevant rules, the petitioners/Board of Directors of PSPC were authorized to award contract at 4.5% higher amount than the amount mentioned in engineering cost estimate. Under Rule 57(2) and (3) of the Punjab Procurement Rules, 2014, it has been provided that in case of goods of high technical nature (machinery, its parts, industrial equipment, plants etc.) a bid cab be negotiated immediately after the opening of the bids. The abovementioned Rule 57 is hereby reproduced as under:- "(1) Save as otherwise provided in these rules, a procuring agency shall not negotiate with any of the bidders.
(2) In case of goods of highly technical nature, (he procuring agency shall ensure that the bidders submit the revised financial bids immediately after opening of the financial bids in the same manner as the earlier financial bids were submitted and the procuring agency shall not allow extra time for submission of revised financial bids by the bidders.
(3) In this rule, the expression goods of highly technical nature means all goods including machinery, its parts and micro-components, industrial, scientific or electronic equipment, plant and tools which are sophisticated in nature costing more than fifty million rupees and procured by adopting the two stage-two envelope procurement procedures."
Keeping in view the abovementioned provision of law, the petitioners did not commit any illegality in negotiating the price of bid with KSB Pumps and reduction of the same immediately after the opening of the bids. It is also noteworthy that KSB Pumps further offered to Board of Directors, PSPC (South) that if the numbers of plants is increased from 84 to 102 plants, then the company will charge 20% less price of all the plants. The said offer of the company was placed before the Board of Directors of PSPC (South) and all the Directors unanimously accepted the said offer, consequently, the price of the plants was reduced. Prima facie, all the proceedings in this case were taken in accordance with the law and rules on the subject and the contract was awarded after acceptance of the negotiated bid of KSB Pumps and even the contract was signed with prior approval of the Board of Directors of PSPC (South). There is nothing on the record to suggest that in any meeting of the Board of Directors of PSPC (South), the quorum was not complete.
Recommendations for award of contract to the contractor (KSB Pumps) at negotiated price of Rs,989 million instead of Rs,1.14 billion, addition of 36-filtration plants and installation of the said plants, removal of solar plants from some of the projects, reduction of the area of plants from 15- marlas to 2-marlas and change in the mode of construction from concrete to prefabricated plant rooms etc., all these matters were done with the prior approval in writing of the Board of Directors of PSPC (South). Prima facie, there is no violation of any law or rule on the subject. The perusal of minutes of 23rd meeting of the Board of Directors of PSPC (South) held on 18th May, 2016 has established that as many as 09-directors of the Company including C.E.O./Director, namely, Waseem Ajmal Chaudhry (petitioner) participated in the said meeting along with five ex-officio Directors. The perusal of the minutes of the said meeting further reveals that quorum was complete and all the Directors of the Board unanimously approved the installation of 116-plants inclusive of additional 36-plants. It was further approved unanimously that additional 36-plants shall be installed without solar system. It was also decided unanimously in the said meeting that the plants shall be built of pre-fabricated material at approximately plot size of 2-Marlas. The copy of the minutes of 23rd meeting of the Board of Directors of PSPC (South) is available in Writ Petition No,242354 of 2018 and the said report has fully belied the allegations levelled against the petitioners by the NAB/respondents. It is also noteworthy that the proceedings in this case regarding the award of the contract to KSB. Pumps, installation of additional plants, removal of solar system and reduction in the plot size etc., all these matters were approved in the meeting of the Board of Directors comprising of 09-Directors including C.E.O. of the PSPC, as well as 05-Ex- officio Directors but surprisingly only two Directors, out of the abovementioned fourteen Directors/ Ex-officio Directors, have been made accused in this case, for the reasons best known to the NAB/respondents. The learned Special Prosecutor for NAB has tried to distinguish the case of Engr.
Raja Qamar Ul Islam and Waseem Ajmal (petitioners) from the remaining Directors of PSPC, by stating that Engr. Raja Qamar Ul Islam was convener of the Procurement Committee and he, as well as, Waseem Ajmal (petitioner) being C.E.O. made post-bid changes in violation of the Punjab Procurement Rules, 2014 and recommended the same for approval by the Board of Directors and as such, their case is distinguishable from the remaining Directors of PSPC (South) Company, hence, they (remaining Directors) were not made accused in this case. There is no force in the said argument of learned Special Prosecutor for the NAB because firstly, as mentioned earlier, no illegality has been committed by the abovementioned petitioners in making post-bid changes and negotiations with KSB Pumps whereby the bid price was substantially reduced from Rs,1.14 billion to Rs,989 millions and secondly, the said petitioners only recommended for placing of the contract in favour of KSB Pumps on the bails of negotiated bid for approval of the same by the Board of Directors of PSPC but the final approval was made by all the 14-Directors/Ex-officio Directors of the Company present in 23rd meeting dated 18th May, 2016. Under the circumstances, it is prima facie established that the NAB authorities have malafidely proceeded only against two Qirectors of the Company, namely, Engr. Raja Qamar Ul Islam and Waseem Ajmal (petitioners). Although, it is argued by the learned Special Prosecutor for NAB that installation of plants in Tehsil Dunyapur was illegal because the said Tehsil was not included in the priority list of Tehsils but admittedly District Lodhran is included in the priority list whereas Dunyapur is Tehsil of the abovementioned District i,e, District Lodhran, therefore, in our view, apparently, no crime has been committed by the petitioners if they have installed filtration plants in Tehsil Dunyapur which was part of District Lodhran. We are unable to understand the allegation of prosecution that the price of the plants could not be further reduced so as to make compatible with the engineering cost estimates when there was no compromise with the quality of filtration plants. No laboratory report has been procured before the Court to establish that the plants installed by KSB Pumps were providing low quality/quantity of water from the installed plants. We have further noted that at the time of decision of the earlier bail petitions in the instant case, this Court has observed that as per record the total plants installed in Hasilpur, Minchap Abad, Bahawalnagar and Rahim Yar Khan are well functioning without any interruption. It was further noted that the prosecution has not denied that the water filtration plants were installed as it was specifically required by PSPC. It was further admitted by the prosecution at the time of decision of earlier bail petitions that services are being provided till today at the sites of installed plants. Under the circumstances, there is no force in the allegations levelled against the petitioners, namely, Muhammad Masud Akhtar, Major (Retd.) Adnan Aftab Khan, Syed Masoud Ul Hassan Kazmi, Muhammad Moeen-ud-Din and Muhammad Younas that they willfully failed to exercise their authority in preventing loss to the State exchequer on account of defective/substandard civil works executed in installation of water filtration plants in Bahawalpur Region. Although, the learned Special Prosecutor for NAB has argued that now the NAB has obtained a fresh report regarding the quality of surface water and the engineering cost quality of the water at Lahore and Bahawalpur which shows that the quality of surface water at Lahore and Bahawalpur is equal and the same establishes that the plants have been installed at exorbitant rate in Bahawalpur as compared to the plants installed at Lahore. In this respect, we have again noted that the abovementioned ground has already been addressed in the earlier bail granting orders of this Court wherein it was noted that the quality of the surface water and the engineering cost quality of the water at Lahore is different than in Bahawalpur, therefore, no benefit can now be extended to the. NAB on the basis of any fresh report in this respect.
13. As mentioned earlier, there is no allegation of receiving any kickback, commission or illegal gratification against the petitioners, their relatives or friends. The only allegation against the petitioners is that they misused their authority in violation of law and rules on the subject punishable under section 9(a)(vi) of the National Accountability Ordinance, 1999 but as mentioned earlier we are unable to notice any material illegality or violation of any rule/law on the subject. If, for the sake of arguments, it is presumed that there was any procedural irregularity in the exercise of jurisdiction by the petitioners, even then the same may not amount to the misuse of authority so as to constitute an offence under section 9(a)(vi) of the National Accountability Ordinance, 1999.
We may refer here the case of "The State v. Anwar. Saif Ullah Khan" (PLD 2016 Supreme Court 276).
The relevant part of the said judgment is reproduced hereunder:- "It is also apparent from the same precedent cases that a mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence under section 9(a)(vi) of the National Accountability Ordinance 1999 and that a charge of misuse of authority under that law may be attracted where there is a wrong and improper exercise of authority for a purpose not intended by the law, where a person in authority acts in disregard of the law with the conscious knowledge that his act is without the authority of law, where there is a conscious misuse of authority for an illegal gain or an undue benefit and where the act is done with intent to obtain or give some advantage inconsistent with the law."
14. It is also noteworthy that there is no allegation against the petitioners that filtration plants were not installed in the light of contract awarded in this case to KSB Pumps or the same were not operational. Under the circumstances, truth of allegations levelled against the petitioners that they violated certain rules whereby they succeeded to get the bid price of filtration plants reduced from KSB Pumps after opening of the bid and as such, they committed an offence punishable under section 9(a)(vi) of the National Accountability Ordinance, 1999, can be determined at trial after recording of evidence and at present, a case for grant of post-arrest bail is made out in favour of the petitioners. Reference in this context may be made to the case of "Muhammad Saeed Mehdi v.
The State and 2 others" (2002 SCMR 282) wherein at Pages-285 and 288, it was observed as under:- Page-285 "Allegations against the petitioner are that in November/December, 1993 while holding the office of Chairman, Capital Development Authority, he sanctioned an amount of Rs,0.6 million to the Environment Directorate, CDA for landscaping near Gate No,3 of the Prime Minister's House, Islamabad in breach of procedure and without following the rules on the subject." ------------------------------------------------ ------------------------------------------------ Page-288 "7. As regards the nature of accusation against the petitioners, the truth or otherwise of such allegations can only be determined at the trial by the Court after deep analysis of the evidence that may be adduced by the parties. Without going deeper into the merits of the prosecution case, it may suffice to observe that prima facie the petitioner does not appear to be guilty of misuse of official position or misappropriation of public funds to his own use or in order to cause monetary loss of public funds or to obtain illegal gain for himself or for any of his relatives or friends. It is not the case of the prosecution that the amount sanctioned by him was not actually spent on the works for which it was approved."
It is also noteworthy that the prosecution case is based on massive documentary evidence. The recording of the said evidence would definitely take considerable time. As mentioned earlier, there is no allegation that the petitioners took any pecuniary benefit in this case, and the allegation against the petitioners is that they misused their authority/official power and the said allegation needs to be proved at trial after recording of massive documentary evidence, therefore, their prayers for grant of post arrest bail can favourably be considered. Reliance in this respect may also be placed on the case of "Anwar Saifullah Khan v. The State and 4 others" (PLD 2000 Lahore 564) wherein the learned Full Bench of this Court with majority decision, granted post arrest bail to the petitioner of the said case inter alia on the ground that the main allegation against him was of the misuse of the political powers and as the massive documentary evidence was to be recorded in the said case to prove the above allegation, therefore, the petitioner of the said case was found entitled to the relief of post-arrest bail. The relevant part of the abovementioned judgment of this Court at Page-584 reads as under:- "This is a case of misuse of political power. The accusations against him flow from a massive documentary evidence. The petitioner, naturally, needs an occasion to see these documents, prepare his defence and face the trial. This entitles him prima facie, the concession of post-arrest bail. Seeing from the above perspective, we are clear in our mind that he has a prima facie case calling for exercise of our jurisdiction to order his pre-trial release. This will enable him to prepare his defence.
The argument of learned Special Prosecutor for NAB that the NAB has already filed petitions against the earlier orders of this Court regarding grant of post arrest bails to the co-accused of the petitioners, is no ground to refuse bail to the petitioners when admittedly the post arrest bail granted to the abovementioned co-accused of the petitioners have not been cancelled so far by the Hon'ble Supreme Court of Pakistan. Even, the leave to file appeal has not been admittedly granted in any of the said petitions filed by the NAB before the Hon'ble Supreme Court, despite the lapse of more than six months from date of order of the Court (dated 19.07.2018) whereby post- arrest bail was granted to co-accused, namely, Nasir Qadir Bhadal, Muhammad Waris Malik, Muhammad Saleem Akhtar, Khalid Nadeem Bukhari and Muhammad Masud Akhtar. We have also noted that post-arrest bail petitions of Waseem Ajmal (petitioner) and Engr. Raja Qamar. Ul Islam (petitioner) have been pending before this Court since 15.10.2018 and 23.10.2018 respectively and despite the lapse of period of 3/3-1/2 months and the same could not be decided during the said period. These petitions cannot be kept pending for an indefinite period before this Court.
15. Keeping in view all the abovementioned facts, these petitions are allowed and the petitioners. are admitted to post arrest bail subject to E their furnishing of bail bonds in the sum of Rs,1,000,000/- (Rupees One million only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.