1. ' This order will dispose of the above bail applications filed on behalf of the applicants on 4-6-1997 and 13-6-1997 respectively.
2. ' Briefly the facts of the case as alleged in the F.I.R. Are that joint application was moved by Ahadullah son of Baadullah and others residents of Kotri to the A.C.E. Kotri, and upon this application permission was given by the Director A.C.E. For registration of the case, accordingly an F.I.R. No,2 of 1997 was recorded by the Inspector, namely, Nazir Ahmed Memon S.C.O. And A.C.E. Kotri on behalf of the State under sections 420 and 34, P.P.C. Read with section 5(2), of the Act II of 1947 against the applicants and one Abdul Sattar of Messrs Kohistan Traders Kotri. The applicant Pervaiz Ali Shaikh was the Administrator of Municipal Committee, Kotri, whereas the applicant Mir Munawar Ali Talpur is the Ex-Minister, Local Government. During the course of inquiry it transpired that the applicant Mir Munawar Ali Talpur who was the then Minister for Local Government, Government of Sindh.Approved the auction contract of Municipal Committee Kotri for the year 1996-97 in favour of Messrs Kohistan Traders (company owned by co-accused Abdul Sattar) on an offer of Rs,52,50,000 in contravention of the rules. It is alleged in the F..I.R. That the official bid for the year 1996-97 was actually Rs,59,82,000 and according to the rules offer shall not be less than the official bid, and that the offer has to be 15% higher than the previous contractual amount. It is also alleged in the F.I.R.
3. That further inquiry in the matter revealed that there was another offer of the same contract in the sum of Rs,54,00,000 which was not considered due to mala fide reasons. The then Secretary Local Government, it is alleged had opposed the offer of Messrs Kohistan Traders, the company of accused Abdul Sattar and _suggested that the offer should not be less than the official bid and the departmental recovery should be indicated. It is also in the F.I.R. That in addition of the documentary evidence, statements of various witnesses were recorded. In view of this all the accused persons have caused wrongful loss to the tune of Rs,7 lacs to the Municipal Committee/Government and similar wrongful gain to themselves by allowing the contract to the accused Abdul Sattar less than the official bid, hence they in collusion with each other have committed an offence under sections 420 and 34, P.P.C. Read with section 5(2), Act II of 1947.
4. ' The bail applications of the applicants filed on behalf of the applicants were rejected by the Special Judge Anti-Corruption (Provincial Hyderabad) on 2-6-1997. Hence these applications.
5. ' I have heard respective learned counsel for the applicants and also the learned Advocate- General, Sindh for the State. I have perused the record and documents filed therewith. I have also gone through the orders passed by the learned Special Judge, Anti-Corruption, Hyderabad.
6. ' It has been contended by Mr. Farid Ahmed Dayo, the learned counsel for the applicant Pervaiz Ali Shaikh that the applicant was the Administrator of Municipal Committee Kotri and had only carried out the orders of the superiors. It has been pointed out that the Government had laid down the policy for awarding contracts of octroi/export tax other taxes/fees, auction of collections rights for financial year 1996-97 onwards by letter No,SOIV/5(1)/96-UC (Policy) by Government of Sindh, Local Government, Public Health Engineering Rural Department and Katchi Abadis Department dated 10th March, 1996 and the auction had taken place in accordance with the policy laid down as per the said letter. It is contended that committee to this effect was formed under the Chairmanship of the Director Local Government and its members were Deputy Commissioner Dadu, Assistant Director Dadu, Administrator Municipal Committee and number of attempts were made to obtain the contract to the extent of Government bid of Rs,59,82,000 but every time no contractor participated in the contract as such the applicant in the capacity of the Administrator had informed the Director, Local Government, Hyderabad on 26-5-1996. In the meantime Abdul Sattar of Messrs Kohistan Traders gave an offer of Rs,52,50,000 and had also deposited Rs,3,00,000 as supporting offer. Such information was given by Mr. Liaquat Ali Magsi, Director, Local Government, Hyderabad Division, Hyderabad to the Secretary, Local Government Public Health Engineering and Rural Development Department, Karachi vide his letter No,6121 DLG/I/1048, dated 30th June, 1996, copy of which was endorsed to Assistant Director, Local Government, Dadu and the present applicant in the capacity of Administrator, Municipal Committee with certain instructions to the applicant. In this letter the case of Messrs Kohistan Traders was recommended. It is further contended that on the basis of this recommendation letter was received by the applicant dated 15th July, 1996 confirming the bid of Messrs Kohistan Traders. This letter is signed by Syed Akhtar Hussain Shah Moosavi, the Section Officer-V on behalf of the Secretary. It is on the basis of this letter, dated 15th July, 1996 that the applicant carried out the directions and accepted the offer of co-accused Abdul Sattar. The copies of the said letters have been filed by the applicant. It is also contended by Mr. Farid Ahmed Dayo, the learned counsel for the applicant that in view of these documents no offence has been committed by the applicant. The action of the applicant cannot in any way be treated as an offence under section 420 as there is no element of cheating involved, even otherwise, this offence is boilable. The ingredient of section 5(2) of Act II 1947 do not seem to apply in this case at all.
7. ' Mr. Azizullah Sheikh, the learned counsel appearing on behalf of the applicant, namely, Mir Munawar Ali Talpur has contended that his client was the Minister of Local Government at that time and no active role has been shown to have been played by him. He referred to the letter, dated 10- 3-1997 which lays down the policy for auctioning the contracts, he contends that at page No,7 of this letter it is conjoined that the auction should be finalised by 30-4-1996 which was the dead line given in this respect. He has filed photostat copies of the open auctions which were held on 23-4- 1996, 25-4-1996, 2-5-1996, 5-5-1996 and 5-8-1996. All these auctions were held by the Committee under the chairmanship of Mr. Liaquat Ali Magsi, the Director, Local Government and the other members of the Committee, namely Deputy Commissioner, Dadu, Assistant Commissioner and applicant Pervaiz Ali Shaikh. It will be observed that in every auction the bid amount was reduced by 3% as per said policy yet nobody came forward to take the contract. Even otherwise, if the applicant in the capacity of Minister had issued directions which apparently were wrong cannot be challenged. Reliance has been placed on 1993 PCr.LJ 551. It has been pointed out that nothing has come on the record to show that the applicant who was the Minister had any link or connection with Abdul Sattar or had any knowledge of any other bid (of Rs,54,00,000 was ever before him which he had brushed it aside). It is also contended that if the case of prosecution is that there was another bid of Rs,54,00,000 the loss to the Government would not be Rs,7,00,000 as alleged by the prosecution. Thus, in this context there is inconsistency in the facts which are on the record and the F.I.R. Inasmuch as the quantum of loss suffered by the Government. Investigation is complete and the applicants are no more required by the prosecution for any purpose offence under section 420 is bailable while the offence under section 5(2) of Act II of 1947 is punishable with 7 years. The evidence in possession of the prosecution against the applicants is based on documents, hence there is no likelihood of tampering with the prosecution evidence. Reliance has been placed on 1995 SCM R 170. He urged that in these circumstances and that the beneficiary co-accused Abdul Sattar has already been released on bail by the Special Judge/Sessions Judge, Dadu. Under the circumstances the applicants are entitled to be released on bail as they have been victimised due to political rivalry.
8. ' Mr. Raja Qureshi, the learned Advocate-General, Sindh appearing on behalf of the State opposes the grant of bail to the applicants. According to him the reference has been made to the Ehtesab Commissioner by the Government of Sindh and in view of section 16 of Ehtesab Ordinance, the reference by the Government to the Ehtesab is an F.I.R. Unlike the one registered under section 154, Cr.P.C. Thus, this Court has no jurisdiction to adjudicate upon this matter. It is true that the reference by itself takes the place of an F.I.R. Under section 154, Cr.P.C. But does not give the jurisdiction of the Court, unless the matter is referred to the Ehtesab Bench which takes the cognizance. Admittedly, the matter has not been taken upto the Ehtesab Bench, consequently this Court is competent to adjudicate in this matter. According to the learned Advocate-General, Sindh the reference was made on 12th February, 1997 by the Chairman Inquiry and Anti-Corruption Establishment (S&GAD) Government of Sindh, Karachi to the Chief Ehtesab Commissioner, copy of which. Has been filed by the Advocate-General wherein the allegations against the present two applicants and Abdul Sattar of Messrs Kohistan Traders were made. To this reference reply was sent to the Chairman by the Ehtesab Director Prosecution,Chief Commissioner Secretariat, Government of Pakistan. After examining the letter No,S0(AC131- 149/97), dated 12-2-1997 wherein queries were made from the Chairman, in respect of the reference, the reference was thus turned down by the Chief Ehtesab Commissioner.
9. ' Another letter was repeated by the Chairman, Anti-Corruption, dated 18-6-1997, informing the Director, Prosecution wherein he was informed that a case has been registered against the applicants it was for them to explain why the offer of Rs,54,00,000 was not accepted and the lower offer of Rs,52,50,000 was accepted. The Director Prosecution vide his letter, dated 26th June, 1997 returned reference with the direction that the actual loss sustained by the State Ex-Chequer may be indicated, as according to their letter, dated 26th May, 1997 the loss suffered by the Government would not be Rs,7,32,300 by accepting the bid of Rs,52,50,000 as against the bid of Rs,54,00,000.
10. According to the Advocate-General the reference is still pending before the Ehtesab Commission as such the applicants are not entitled to grant of bail. He further states that the applicant Pervaiz Ali Shaikh is an officer in Grade-17 as such he is out of the preview of Ehtesab Ordinance which deals only with the officers of Grade-18 and above.
11. ' I have carefully considered the contentions made at the Bar and also the objection raised by the learned Advocate-General on behalf of the State. I have also gone through the authorities relied upon by the defence..
12. ' For convenience sake the relevant provisions of the Ehtesab Ordinance are reproduced:-- "Section 14 relates to the cognizance of offences etc. Reads as under:--
(1) The Court shall not take cognizance of an offence under this Ordinance except on a reference made by the Chief Ehtesab Commission.
(2) A reference under this Ordinance shall be initiated by the Chief Ehtesab Commission
(i) a reference received from the appropriate Government, or (a)
13. (b)
14. ' Section 16 reads as under:-- 16(1) Where a reference is made to the C.E. Corn. Under clause (i) of subsection (2) of section 14, such reference shall be deemed to be an information recprded under section 154 of the Code.
15. Provided that no arrest of a holder of public office/accused of an offence under this Ordinance, shall be made without the prior approval of the Chief Ehtesab Commission."
16. ' Under section 14(2) of the Ehtesab Ordinance shall take cognizance of an offence under this Ordinance only on a reference made/initiated by the Chief Ehtesab Commissioner. This however, does not speak that reference to the Ehtesab Commissioner would amount to the taking of cognizance by the Court (Ehtesab Bench). Subsection (2) of the said section speaks of a reference under this Ordinance is to be initiated by the Chief Ehtesab Commissioner on a reference received from the appropriate Government. Thus, reference made against the applicants by the Government to the Ehtesab Commissioner was under section 14(2)(i). Section 16, however, clearly shows that the reference made to the Chief Ehtesab Commissioner under clause (i) of subsection
(2) of section 14 shall be deemed to be an information recorded under section 154 of Code (i,e,, Criminal Procedure Code). A distinction has been made in section 16 between the effect of F.I.R. And that under this section is that on recording of the F.I.R. Under section 154, Cr.P.C. The police can arrest the person against Whom this report has been made whereas in the proviso to section 16 a restriction has been placed that the arrest of an official accused of an offence under the Ehtesab Ordinance is that the person named cannot be arrested without prior permission of the Chief Ehtesab Commissioner. Thus, as already held above the reference made against the applicants would not debar this Court from adjudicating upon the case of the applicants or to consider their bail applications. Reliance can be made on Hakim Ali Zardari v. The State Criminal Bail Application No,39 of 1997, wherein it has been held that until the matter has been referred for trial to the Court, the normal Courts would continue to have jurisdiction in the matter. The reference against the applicants are still in process and the cognizance has not been taken by the Ehtesab Bench as certain queries are being made in that behalf. The contention of the learned Advocate-General, therefore, is without any force.
17. ' Copies of the auction procedure have been filed which clearly shows that no one was prepared to accept the contract as per Government bid which was being decreased every time by 3% as per policy laid down by letter, dated 10-3-149.6. It has also been pointed out that finding no other alternate Mr. Liaqtrit Magsi, the Director, Local Government, Hyderabad Division informing the secretary Government of Sindh Local Government Public Health Engineering and Rural Development Department, Karachi that despite of all efforts made by the Committee of which he was the Chairman no contractor were had come forward to take the contract on the Government bid which was decreased by 3% every time. It was the Director who had recommended the case of co-accused Abdul Sattar of Messrs Kohistan Traders who was willing to accept the contract for Rs,52,50,000 and has deposited Rs,3,00,000 as supporting of the offer. In reply to this letter, Government accepted the bid of Messrs Kohistan Traders vide his letter, dated 15th July, 1996, therefore, it appears that applicant Perwaiz Ali Shaikh had accepted the bid as per instructions given to him by the abovesaid letter, dated 15th July, 1996, hence the contention of the learned counsel that no offence has been committed by the said applicant has some force having support from the record produced.
18. ' There is no mention of any bid having come forward to the extent of Rs,54,00,000 except from the queries made by the Chief Ehtesab Commissioner and from the reference made by Government.
19. As regard the applicant Munawar Ali Talpur, the learned counsel has challanged bona fides of the Government and has categorically stated that he has been made a victim due to the political rivalry nothing has been placed on the record to show if there was anything before him as the Minister of Local Government in spite of the so-called bid of Rs,54,00,000 placed before him. No documents of approval by the said applicant has been produced. It is to be noted that according to the prosecution loss accrued by the Government in accepting the bid of Rs,52,50,000 was Rs,7,00,000. If the case of the prosecution was that there was a bid of Rs,54,00,000 as against the bid of Messrs Kohistan Traders amounting to Rs,52,50,000, the loss definitely would not be Rs,7,00,000. Thus, in case where there is a dispute over the quantum of loss or accountability the case calls IC for further inquiry and the accused is entitled to be released on bail.
20. ' It has been contended by Mr. Azizullah Sheikh that admittedly his client was Minister for Local Government and even if he had given a wrong decision as a Minister it could not be challenged. In the case Qaim Ali Shah v. The State reported in 1993 ,PCr.L1 551, it has been observed that under the Sindh Government Rules of Business, 1986, Rule 7 which relates to the powers of the Chief Minister shows that Chief Minister may allocate to a Minister one or more Departments or part of a Department, but the Chief Minister shall have powers to pass order in any case concerning any Department without consulting the Minister of that Department. It is also provided that the Chief Minister may, in respect of any Department, delegate all or any of his powers under these rules to the Minister or Secretary of the Department. It is further provided that any order of the Chief Minister or any authority to whom he has delegated his powers to pass such orders, in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to. Be the order passed by the Government. It has also been observed that in conducting the affairs of the Government things are often done which may subsequently be found to be wrong, but every wrong decision by the Chief Executive of the Province does not invite penal action. Admittedly, the applicant Munawar Ali Talpur was Minister for Local Government, Public Health and Rural Development Department and any order passed by him would be presumed to be the orders passed by the Chief Minister/Government. Similar is the case of the applicant. Although there is nothing on the record to show that he had ever approved this bid of Rs,52,50,000. Even if it is presumed that he had approved entire evidence collected by the prosecution is based on documents which are in possession of the prosecution, hence there is no possibility of any tampering G with the prosecution evidence. In the reported case Saeed Ahmed v. The State reported 1995 SCM R 170, the evidence in that case entirely depended on the documents which were in possession of the prosecution and it was held that the case entirely depended upon documentary evidence which was in possession of the prosecution, hence there was no possibility of tampering with such evidence and the applicants were granted bail.
21. ' Above all, the beneficiary of the contract, namely, co-accused Abdul S'attar has already been granted interim bail before arrest by the Senior Special Judge, Dadu, on 27-5-1997 which was subsequently confirmed on 30-6-1997. Accordingly, I find that the present applicants are also entitled to the grant of bail, accordingly their bail pleas are accepted and they shall be released after they furnish solvent surety, each, in the sum of Rs,75,000 (Rupees seventy-five thousand) with P.R. Bond in the like amount to the satisfaction of the trial Court.