Muhammad Iqbal Kalhoro, J.--Petitioners standing a trial in Reference No. 15/2020 regarding allegations of corruption and corrupt practices in a transaction whereby Pakistan Petroleum Limited (PPL) purchased corporate assets including working shares in block of M/s. Morayske Naftove Doly, Exploration, and Production (MND E&P), a UK based oil and gas exploration comp any, causing a loss to thenational exchequer , have applied for pre arrest bail.
2. The Investigating Officer has conclude d in the, investigation that petitioners and co-accused with their active connivance and collusion and by misuse of authority acquired the assets of aforesaid company at an exorbitant rate causing a primary loss of USD 67.2 million on account of difference in valuation and USD 53.0.9 million on account of post-acquisition operational losses totaling USD 121.6 million to the national exchequer . Petitioners Moin Raza Khan, Syed Rahat Hussain Naqvi, Abdul Wahid Choudhry , and Asim Murtaza Khan, stated to be senior PPL officials, are alleged to be instrumental in purchasing such assets at higher than its market value. Their alleged collusion and connivance with Khaqan Saadullah, a financial adviser M/s. KASB, is the main theme of the reference rooted mainly in discovery of minutes of various meetings including a meeting dated 17.05.2012 participated by petitioners and PPL Board of Directors approving proposal for a bid at USD 180 million for purchasing those assets; and preceding emails mostly between the petitioners sharing technical details, assets evaluation, etc.
3. Learned defense counsel have highlighted that the Chairman PPL, who filed the 'complaint with NAB, is not even the witnesses; the case is based on hypothesis drawn by the IO regarding collaboration, connivance and collusion of the petitioners with each other and there is no evidence available on record in this regard; the loss calculated by the IO is based on a figment of his imagination and there is no expert report to justify the same; the detail of alleged role of each petitioner specified in the reference is without incriminatory overtones and it does not come within the ambit of misuse of authority; no evidence- of petitioners gaining a personal benefit has either been alleged or implied in investigation; the Board Mem bers taking part in the meeting dated 17.05.2012 and approving bid- proposal have been let off by the IO on the basis of inference derived hypothetica lly by him, is reflective of his ill motive to implicate petitioners at any cost; the loss calculated by him is based on a report of M/s. Deloitte dated 25.04.2017 which already in its report dated 10.04.2017 had categorically stated that there was no evidence of fraud, etc.; that IO has not conducted proper investigation and with mala fide caused issuance of warrant against petitioners Asim Murtaza and Chaudhary Khaqan Sadullah Khan and not the others. Finally they submitted the reference has been filed in haste and petitioners are entitled to concession of pre arrest bail.
4. Learned Special Prosecutor NAB and the IO have opposed the case of petitione rs for bail: The has referred to a number of documents available in investigation report and 161, Cr.P.C. statements of the witnesses, to show that how without an input from finance department of the company , the proposal for bid having serious financial implications was processed, discussed and approved by the petitioners to purchase assets at higher than market price.
5. Considered and perused the record. Entire accentuation in the reference is on the fact that PPL purchased the assets at a higher than market price. But surprisingly neither the actual market price of those assets has been declared nor, it seems, was any attempt Oven made by the IO to ferret out the same. At best his case on this aspect is founded on some computer generated reports plus reports of M/s. Deloitte and PRS Energy prepared before the investigation. The evidentiary value thereof, the background and the circumstances triggering preparation of such reports are the questions which need to be inquired into and determined by the trial Court. At this stage the same would not be deemed reasonably connecting the petitioners with the alleged of fence.
6. Much as a loss of USD 67.2 million in terms of difference in valuation and USD 121.6 million on post-acquisition operational losses has been alleged in the reference. But the expert analysis of the relevant material which helped the I.O. make such technical estimation is ostensibly not available in the record. We therefore find it hard to subscribe to such figure and endorse it as a prima facie proof against the petitioners.
7. In the reference, except the suggestions of collusion, connivance, etc. between the petitioners to clinch the deal with ulterior motive, nothing concrete lending credence to such insinuations has been brought on record and it is ubiquitously clear to us that the JO mostly by just looking at the minutes of meetings particularly of the one dated 17.05.2021 and record of certain e-mails has formed an opinion about guilt of the petitioners. His opinion about innocence of Board Members, who actually approved the proposal of the- bid paving the way for such a controversial transaction, is extremely subjective with nothing to bank on. He has stated rather opaquely in the reference that no evidence about their mens rea and actus reus was there because they were not expert and involved in manipulations. It is not only contradictory to their presence in the fateful meeting and granting approval to the bid but is indicative of cherry-pickin g. There is otherwise nothing on the record which induced him to make such a salutary inference about them in presence of their palpable role.
8. Against petitioner , Chaudhary Khaqan Saadullah Khan it is specifically alleged that he amended his report four times mala fide and enhanced the value of assets each time. But a perusal of the reference itself would show that each time some additional components were included and which seemingly cause d spike in estimation qua value of the assets. Be that as it may, the point to be noted is that all such reports were presented before the Board Members and they took no exception to it and granted a go-ahead for a bid. The person whose reports were merely a proposal subject to all exceptions has been arraigned in the reference and the ones with authority to reject it but did not have been let off by the JO on the plea that they were not expert. Albeit no material regarding their being expert or not is available. But in our tentative view on such an excuse a person's responsibility , sitting on an authoritative position to make an attentive decision in a given situation, would not stand extenuated and he would be held fully responsible of any adverse after-ef fects happening as a result of his decision.
9. To a query during the hearing of the case, the JO completely failed to warrant his recommendation to the Chairman NAB for warrants only against two petitioners Asim Murtza and Chaudh ary Khaqan Sadullah Khan and not the others when he has alleged all the petitioners with their common intention, active collusion and convince have committed this offence. And why he did not seek their custody in the inves tigation and how thus he could oppose their plea of pre-arrest bail now. When we take a holistic view of all these facts and circumstances, on balance, we find the case to be of further inquiry . Resultantly , we confirm. the ad interim bail of all the petitioners on the same terms and conditions they were granted bail on.
10. The petitions are disposed of in above terms. Needless to state that aforesaid observations are tentative in nature which shall not have any bearing over merits of the case before the trial Court. The petitioners are directed to join the trial and shall not cause any hindrance or delay in the proceedings thereof and if the trial Court finds them doing so shall make a reference to this Court for cancellation of concession granted to the petitioners by this order .