Dr. Shafi-ur-Rehman Afridi petitioner through Crl. Misc. No. 77754-B of 2021, Dr. Abdullah Ahmed Malik petitioner through Crl. Misc. No.77245-B of 2021, Imran Ali Abro petitioner through Crl. Misc. No. 77224-B of 2021 and Nadeem Butt petitioner through Crl. Misc. No.78287-B of 2021 seek post arrest bail in a case registered against them vide FIR No.81 of 2021 dated 29.10.2021 offences under sections 420, 468 , 471, 109, PPC read with section 5 (2) of Prevention of Corruption Act, 1947 & Section 3/4 of Anti-Money Laundering Act 2010 at police station Anti-corruption circle, FIA, Lahore.
2. As the aforesaid bail petitions are outcome of one and same FIR, hence, are being decided through this single order.
3. Brief facts of the case are that as per provisional license issued by OGRA to Fossil Energy Pvt. Ltd on 18.09.2017, the OMC was under legal obligation to complete their infrastructure, including construction of storages and retail outlets, but in clear disregard to the terms of provisional license, M/S Fossil Energy Pvt. Ltd failed to deliver on its plan to complete its infrastructure. Instead of taking note of this failure, OGRA by abusing their official position illegally granted permission for marketing of petroleum products to the OMC on 19.09.2019. Fossil Energy (OMC) was granted illegal permission to import in the Product Review Meeting (PRM) for the month of March held on 11.03.2020, under the Chairmanship of DG Oil MoEPD, a total of 1000 MTs of MS petrol. Fossils Energy Pvt. Ltd was allocated 4700 MTs import quota in different PRMs and they uplifted 21,000 MTs from local refineries from February 2020 to September 2020 at that point in time the OMC had no retail outlets at all as per record of OGRA and Explosives Department. In total, they sold 32-million liters of MS Petrol and HSD, despite having no retail outlets while gaining a profit of at least Rs.90 million illegally (based on OMC margin as per pricing formula). These facts manifestly demonstrate that M/S Fossils Energy Pvt. Ltd. Committed these flagrant illegalities in collusion and collaboration with concerned officers/officials of MoEPD which resulted into unlawful gains by the OMC and deprived the rightful OMSs. The above mentioned illegalities explicitly reflect the abuse/misuse of official position by the concerned public servants of OGRA, MoEPD along with M/S Fossils Energy Pvt. Ltd (the beneficiary in obtaining unlawful gain as abettor). During the proceedings, it has also emerged that M/S Fossils Energy Pvt. Ltd has since long been in practice of maintaining fudged supply figures, the crime proceeds so obtained are being used in money laundering by the management of M/s Fossil Engergy Pvt Ltd. On the basis of aforementioned illegalities the instant case was registered against the petitioners and co-accused.
4. Arguments heard. Record perused.
5. As per allegation, Dr. Shafi-ur-Rehman Afridi petitioner being D.G Oil, Ministry of Energy (Petroleum Division) (MoEPD) illegally allocated 4700 MTs import quota to Fossil Energy Pvt. Ltd
(OMC) in the different Product Review Meetings (PRM) for the import of petroleum products. The allegation against Dr. Abdullah Ahmed Malik petitioner in the FIR was that he was appointed as Member Oil of OGRA and while performing his duties, he issued Provisional Operational license to M/S Fossils Energy Pvt. Ltd without getting verification the financial statements submitted by Oil Marketing Companies (OMCs). As per allegation, Imran Ali Abro petitioner was performing his duties as Research Officer in Ministry of Energy (Petroleum Division) (MoEPD) and he facilitated Fossil Energy Pvt Ltd (OMC) for illegal permission to import petroleum products in the Product Review Meetings (PRMs) whereas allegation against Nadeem Butt petitioner in the FIR was that he was the Director of M/S Fossil Energy Pvt. Limited (OMC) and he illegally applied for Provisional License of Fossil Energy Pvt Ltd and he kept on marketing the refined petroleum products unlawfully as marketing license is granted by OGRA unlawfully to Fossil company. His company is alleged for illegal import and illegal sales of oil products.
6. It has been noticed that Federal Government constituted an inquiry commission under "Inquires Commission Act 2017". This inquiry commission was consisted of seven members out of which two members refused to join the proceedings of the commission and later on said two members were replaced with two other members who also remained absent. Under section 3 of the Inquiry Act, 2017 only the Federal Government was authorized to appoint members of the commission and this Act did not envisage any right of the Federal Government to delegate that power over to any subordinate body. It has been held repeatedly by the superior Courts that members of the commission cannot be substituted. Record reveals that on receipt of report of Inquiry Commission on shortage of Petroleum products, the Federal Government constituted a Ministerial Committee under the chairmanship of two Ministers. The said committee made recommendation to the Federal Cabinet who referred the matter for forensic investigation to FIA to unearth evidence/proof of criminal act/intent, with the direction to submit its report within 90-days.The FIA did not follow the observations made by the committee, rather, FIA registered the case on the basis of findings of the commission. Dr. Shafi-ur-Rehman Afridi petitioner was serving as D.G Oil in the Ministry of Energy Petroleum Division (MoEPD) whereas Imran Ali Abro petitioner was working as Research Officer in the said Ministry when Oil shortage crisis emerged in June 2020. The role of the petitioner (Dr. Shafi-urRehman Afridi) was to finalize the import quota under Rule 30-B of the Petroleum Rules of 1971. From the evidence available on record it transpired that Dr. Shafi-ur-Rehman petitioner with the assistance of Imran Ali Abro petitioner allocated the Quota to import the petroleum products on the recommendations of Oil Companies Advisory Committee(OCAC). The Director-General Oil under the aforesaid Rule holds Product Review Meetings and decides the matters relating to import of Petroleum products and allocates the quota on the recommendations of the Oil Companies Advisory Committee(OCAC). The Ministry of Energy Petroleum Division relies on the record of OCAC for allocation of Import Quota. The Inquiry Commission also concluded that Oil Companies Advisory Committee (OCAC) has a pivotal role in the collection and determination of Import Quota and the Inquiry Commission through its report also recommended to curtail the role of OCAC in the collection of Data and import of quota.
According to Petroleum Rules,2016 every authorized importer can import petroleum products and can sell the petroleum products to its retail outlets and its authorized dealer or bulk purchasers and institutional consumers. Prima facie the petitioners had no legal role in the instant matter. Dr. Abdullah Ahmad Malik petitioner had issued provisional license for the period of three years to M/S Fossil Energy Pvt Ltd (OMC) which was allegedly running by Nadeem Butt petitioner and other Oil Marketing Companies under Rules 35 (2) & 35 (3) of the Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules,2016 framed under the OFRA Ordinance, 2002 which are reproduced as under:- 35(2) The Authority after examining the application made under rule 34 shall initially issue a licence for a period of three years during which marking infrastructure i.e storages, detail outlets and filling stations etc., as given in the work program, shall be completed in accordance with laid down technical standards. In case of failure to complete the aforesaid marketing infrastructure within the stipulated period of provisional licence, the authority may refuse the extension of the license or, depending on the nature of non-compliance and subject to penalties under the Ordinance and the rules, may grant extension on such terms and conditions and for such period as deemed appropriate.
(3) Upon satisfactory completion of the work program subject to the certification by third party inspector confirming the compliance of technical standards the authority shall grant licence to an oil marketing company for a maximum period of 30-years subject to renewal, from time to time, on making of fresh application at least two years prior to the expiry of the existing licence alongwith certification by third party inspector confirming the compliance of technical standards. A licence renewed shall be valid for a maximum period of fifteen years at a time.
Allegedly Nadeem Butt petitioner was Director of M/S Fossil Energy Pvt Limited. He was granted Provisional license on 18.09.2017. M/S Fossil Energy Pvt Limited (OMC) was allowed marketing on 19.09.2019. The M/S Fossil Energy (Pvt) Limited constructed the storage Depots in compliance with the License dated 18.09.2017. Through letter dated 15.03.2019, Oil and Gas Regulatory Authority allowed the petitioner Nadeem Butt (M/S Fossil Energy Pvt Limited) to operate new oil storage at Gatti, Faisalabad and to initiate marketing/sale in the Punjab Province. Record further reveals that during the inquiry proceedings, M/S Fossil Energy Pvt. Limited through letter dated 10.08.2021 submitted the requisite documents regarding the detail outlets of the company which were functioning at that time. The Oil Marketing Company (OMC) also submitted the relevant documents regarding sale invoices for each month, detail of Oil storage, terminals at Gatti and Mehmood Kot, statements of Bank Accounts, record of shipments received at Karachi port and delivery notes. During the course of inquiry proceedings the petitioner Nadeem Butt (M/S Fossil Energy Pvt. Limited) also produced the certificate along with pictures of OGRA Enforcement officials who allegedly visited the Terminal situated at Gatti and made inspection of storage capacity of the stocks. The detail of the aforesaid documents is available on the file which prima facie supports the version of the petitioners. Nazia Malik co-accused who was allegedly shareholder in the Fossil Energy (Private) Limited (OMC) was declared innocent by the FIA. Furthermore, Fossil Energy (Pvt)
Ltd filed writ petition No.70346 of 2021 before this Court. Vide order dated 03.12.2021 a direction was issued to FIA authorities not to cause any illegal harassment to petitioner and the Bank authorities were directed to unfreeze the banks accounts of the petitioners. It has further been notice that order dated 25.06.2021 passed by Hon'ble Chief Justice in W.P Nos. 25669 & 26868 of 2020 whereby aforesaid petitions were disposed with certain direction to the Cabinet Division of the Government, was challenged through different I.C.A Nos. 70578 of 2021, 47386 of 2021, 68441 of 2021 & 70581 of 2021 wherein the respondents/FIA were restrained from taking any adverse action against the petitioners and the Companies. In ICA No.47386 of 2021 the Hon'ble Division Bench of this Court has made observations that " the OMSs are the listed companies with shares listed in stock exchange and action of the respondents, without following the proper procedure of law, is against the spirit of Article 18 of the Constitution and without involving the Regulator/OGRA and such action of the respondents lacks confidence of the investors and shareholders which weakens the economy of the Country". It has further been noticed that OGRA Ordinance, 2002 is not part of the scheduled offences and it provides a complete mechanism for the filing of the complaint and has overriding effect over the other laws. The sentence is provided in section 25 of Oil and Gas Regulatory Authority Ordinance, 2002. Reliance in this regard is placed on case of {{Oil and Gas Regulatory Authority through Secretary versus Sui Southern Gas Company Limited and others (2018 SCMR 1012)}}. Whereas the FIA Act, 1974 is only dealing with the matters of scheduled offences. Prima facie, the FIA has no jurisdiction to deal with such matters and only the OGRA has the jurisdiction and allegedly the petitioner (Fossil Energy (Pvt) Ltd (OMC) has already paid fine and the matter is yet to be decided by the OGRA. Surprising the FIA has lodged the instant FIR against the petitioners which speaks volumes. Furthermore, while performing the functions under the OGRA Ordinance, the authorities are immune from prosecution. In the FIR there was no allegation against the petitioners that they received any illegal gratification from any manner. No direct evidence is available on record against the petitioners in order to establish that they made tempering in the record or committed fraud or deprived any person from his valuable property. The petitioners had declared their assets in the income tax returns and nothing was concealed. No cogent evidence was collected by the I.O that petitioners were involved in the commission of offence falling within the purview of Anti-Money Laundering Act, 2010. Keeping in view the facts and circumstances of the case, the applicability of offences alleged against the petitioners require further inquiry. The petitioners were arrested in this case on 29.10.2021 and they are behind the bars for a period of about three months and are no more required by the FIA for the purpose of further investigation. No useful purpose would be served by keeping the petitioners in jail for an indefinite period.
7. For what has been discussed above, case of the petitioners comes within the ambit of further inquiry, therefore aforesaid petitions (Crl. Misc. No. 77754-B of 2021, 77245-B of 2021, 77224-B of 2021 & 78287-B of 2021) are accepted and petitioners (Dr. Shafi-ur-Rehman Afridi, Dr. Abdullah Ahmed Malik, Imran Ali Abro and Nadeem Butt) are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs.5,00,000/- (Rupees five lacs only) each with one surety each in the like amount to the satisfaction of the learned Trial Court.