1. The applicants are facing trial in the Accountability Court No,3, Karachi, alongwith three other accused persons on a reference made by the Chairman, National Accountability Bureau. Accountability Reference No,16 of 2002 under section 18(g) read with section 24(b) of the National Accountability Bureau Ordinance, 1999, reads as follows: "That in April, 1994 Korangi Fisheries Harbour Authority (KFHA) requested KESC for providing additional power load of 3.0 megawatts, which was duly sanctioned by KESC Board of Directors on 19-4-1995. The provisional estimate for the scheme was Rs,29,534,202. This scheme was also provided/sanctioned by Chairman/Managing Director/KESC on 2-9-1995:
(i) Installation of Capacitor Bank.
(ii) Payment of full estimate.
(iii) Approval of way-leave from competent Authority. That the case file remained pending in Planning Department of KESC for want of payment by Korangi Fisheries Harbour Authority. According to the statement of the then Chairman, KESC, Harbour Authority should have deposited the amount as per estimate approved and should have got the work done on deposit basis in the light of written instructions. On the contrary a letter was written by Harbour Authority to Chief Engineer distribution seeking permission to carry out the execution of electric work of 3.0 megawatts through their own contractor. This application was addressed directly to Chief Engineer (Abdul Rahim Samoo) instead of (Chairman/Managing Director). This application was recommended to the then General Manager Mr. Akhtar Hassan Ansari (accused No,1) who granted the approval on 15-11-1985 without taking into consideration the condition earlier imposed by Chairman/Managing Director.
2. That, as a result contract was awarded by Harbour Authority itself to M/s. Decent Electric Services, which organization did not carry out the work properly and consequently, substandard work was done and the fault erupted on 6-1-1997 within 20 days of energization which was done on 15-12- 1996. During the execution period Ashfaq Baluch, Ex-Executive Engineer KESC (accused N0,3) passed four running bills on the following dates:--
(i) Rs.212,445 dated 7-3-1996 (ii)Rs.18,084,131dated 8-4-1996 (iii)Rs.3,801,663 dated 27-6-1996 (iv)Rs.5,626,106 dated 5-9-1996 That 10% of the amount being retention money was also released prematurely total cost of the project was Rs,3,49,990. That during investigation and from the material relied by the Investigating Officer Mr. Muhammad Hashim Qureshi, Assistant Director, FIA, CC-II, Karachi it became clear that it was beyond the power of accused No,1 to approve this scheme as is evident from the information provided to FIA by KESC through letter dated 10-12-1999 bearing No,CED11/24/99/710 and thus accused No,1 misused his authority. That like-wise accused No,2 Abdul Rahim Samoo entertained the request Of self-financing made by KFHA and recommended the same to accused No,1, for approval. Being senior officer he must have knowledge of the proper jurisdiction for approval. He also did not look into the technicalaspect of such policy, and as a consequence thereof, after getting approval he directly kept liaison with XEN (UGM) A Division, and by bypassing SE Deputy Chief Engineer but never felt necessary to take any visible step to ensure the proper execution and quality of work. That accused No,3 Ashfaq Ahmed, the then Executive Engineer of KESC was to supervise the entire job carried out by KFHA's Contractor but he deliberately and with mala fide intention failed to carry out his responsibility. He never cared to safeguard the interests of his Corporation whereas he was deputed from KESC side to ensure the quality of contractor's work under the prescribed standard of KESC. It is, evident that work was to be done as per drawing No,A-0924 prepared by KSEC required to be supervised by KSEC and payments were only to be released after getting satisfaction that the work has been done according to prescribed standard which was not done by the contractor and as a result besides amount abovementioned a sum of Rs,3,290,482 being 10% of each bill as retention money was also released prematurely. That during the course of inquiry, at the request of F.I.A. Physical survey of the site was conducted by KSEC Authorities, and they have calculated the total length of cable actually used as 9.656 Kilometers which is far less as compared to the length of 12.5 Kilometers, the cost of which length with allied expenditure was paid by KFHA to the contractor under the formal certification of accused No,3 and on this account following amount was wrongly claimed by Contractor and was paid by KFHA:--
(i) (i) The cost of 2844 metres cable at the rate of Rs.2200 per metre Rs.62.56,800 (ii)(ii) Execution charges for above fake length 2844 metre Rs.310 per metre.Rs.8,81,640 (iii)(iii), Joining charges (2844 metres) total 9 joints Rs.32,000 Rs.2,88,000 Total: Rs,74,26,440 That in the above case alongwith the officials of KESC, one Hamidullah of KFHA was involved has since expired on 5-6-1999, therefore, has not been made accused. That accused No,5 Sham Lal Lasi was authorised representative of M/s. Decent Electric Services, Karachi and its proprietor accused No,4 Sadiq Ali are the contractors who have obtained tender from KFHA and executed whole job on their own arrangements. Physical examination proved that the whole job was substandard and material used therein was of inferior quality and this was a work of poor workmanship. That due to substandard work the net loss caused to Government on this project is Rs,24,260,840. That after having gone through the material placed before me in the shape of evidence collected during the inquiry and investigation it is just and proper to proceed further, and therefore, this matter is being referred to this Hon'ble Court as the accused dishonestly and fraudulently in collusion with each other either obtained for themselves pecuniary advantage or allowed the others and thereby they misused their lawful authority and committed offences of corruption and corrupt practices as defined in section 9 of the NAB Ordinance. It is therefore, prayed that all the accused persons may be tried in accordance with the provisions of the NAB Ordinance by this Hon'ble Court. A perusal of the above reference shows that, distinct and specific allegations have been levelled against all the five accused persons. The details of the offences allegedly committed by each of the accused and evidence in possession of prosecution is contained separately in the Annexure, copy whereof has been supplied to the accused persons. At the very outset, we would like to observe that, accused Akhtar Hassan Ansari and accused Abdul Rahim Samoo have been granted bail by us. The allegations against the present applicants are that they did not carry out the work properly.
3. Substandard work was done with the result that the fault erupted within 20 days of energization. It is further alleged that 10% of the amount being retention money was also released to M/s. Decent Electric Services, of which the applicant Sadiq Ali is proprietor and accused Sham Lal Lasi is authorised representative. The prosecution has further alleged that, during the physical survey of site, conducted by K.S.E.C. Authorities at the request of F.I.A., it was found that total length of cable actually used was 9.656 Kilometers, which is far less as compared to the length of 12.5 Kilometers, which was required to be used, according to the specification. According to prosecution the cost of cable, which was not used was also paid to the applicants which was wrongly claimed by them, with the result that a loss of Rs,74,26,440 was caused. It is alleged that, M/s. Decent Electric Services, Karachi used substandard material which was of inferior quality and the workmanship was also poor with the result that, a loss of Rs,24,260,840 was caused to the Government. Mr. Abul Inam, learned counsel for the applicants has argued at length. He has submitted that co- accused Akhtar Hassan Ansari and Abdul Rahim Samoo, the then General Manager (Transmission and Distribution) KESC and Chief Engineer, KESC have been released on bail and, therefore, the present applicants are also entitled to be released on bail. Mr.Abul Inam, has referred to various Certificates to show that the work was done according to the specification and standard prescribed by the KESC. He has further submitted that the 10% retention money was also paid to the applicants in accordance with the terms and conditions agreed upon in the contract and there is no illegality in the payment of said amount. He has submitted that the entire amount was paid after completion of project according to the satisfaction of the officials of KSEC and Korangi Fisheries Harbour Authority and on certification that, the work has been completed and tested satisfactorily and that the maintenance period of six months had expired from the date of completion of work and that the works were maintained satisfactorily. Mr. Abul Inam, has dilated on very minute details to show that, the alleged fault was pointed out to the applicants for the first time in October, 1998, although the project was energized in December, 1996. Mr. Abul Inam, has contended that the survey in respect of the length of cable, has been conducted in the absence of the applicants and according to him the survey so conducted during the course of investigation/inquiry' is defective. He has submitted that, if fresh survey is conducted through independent experts and it is found that the cable measuring 12.5 Kilometers was not laid down, he will withdraw the bail application.
4. On the other hand, Mr. Aamir Raza Naqvi, learned ADPG, NAB, has vehemently opposed the bail application and has contended that the applicants have caused huge losses. He has contended that all the certificates on which the learned counsel for the applicant has placed reliance were issued by accused Ashfaq Ahmed Baloch, Executive Engineer, KESC who was deputed by KESC to supervise the standard, quality and work of the project but he became a party with the present applicants and was instrumental in causing huge losses to the State. He has submitted that, since co-accused Ashfaq Ahmed Baloch is himself facing trial alongwith present applicants and is alleged to be a privy to the commission of offence therefore, no reliance can be placed on such certificates at least, at this stage. He has submitted that, in fad the project was never put to test. As and when it was energised, the fault erupted, with the result that the project never materialised. He has pointed out that in the letter Annexure H/2, with the bail application, it is stated that the cable fault occurred on 1-1-1997 at "No Load" position. He has further pointed out that in the letter Annexure H/3 addressed by Managing Director, KESC to the Managing Director, Korangi Fisheries Harbour Authority, it .Is stated that a meeting was held regarding re-energization of the project. In this letter dated 16-11,1999, it was decided that the project be energised under the supervision of the representatives from KESC and KFHA while repair work shall be carried out by the contractor and entire work of fault localization, repair and testing will be done by the contractor at their cost. He has further pointed out that in the letter Annexure H/5 annexed with the bail application, dated 24th of February, 2000, it was informed by KESC to KFHA that the Feeder was again tested and the fault was pin pointed and was handed over for the tapping joints to the Contractor. The Contractor carried out the tapping joints and the cable was pressured on 18-2-2000 and was found OK in pressure. It was pointed out, in the said letter that KESC will only take over the Feeder, on its successful operation 'on load' for a period of four months. Mr. Aamir Raza Naqvi, has submitted that the Grid/Project was never tested "on load" and in fact the entire amount spent on the project has gone in drain, because of substandard material used, poor workmanship and the laying down of cable at 9.656 Kilometers instead of 115 Kilometers. In support of his contention, he read the statements of P.Ws. Zubair and Ghulam Rasool recorded during the investigation We have carefully considered the material on record and respective contentions of the learned Advocates. We would like to observe that the case of every accused person is to be considered on its own merits. So far, the grant of bail to the co-accused Akhtar Hassan Ansari and Abdul Rahim Samoo is concerned, it has no bearing on the bail plea at the instance of present applicants. The allegations against co-accused Akhtar Hassan Ansari and Abdul Rahim Samoo are of entirely different nature.
5. The learned Advocates for the parties have addressed very lengthy arguments and Mr. Abul Inam has dilated on very minute details. We are of the opinion that, a tentative assessment is to be made only at the stage of bail application and no in-depth and detailed examination of the prosecution evidence is warranted at this stage. We would, therefore, refrain from giving any observation about the minute details of the respective contentions of the learned Advocates.
6. So far, the question of any site inspection or independent survey of the project by some independent experts is concerned, we are of the opinion that, this Court is not a proper forum to consider its feasibility. The applicants are at liberty to submit such application before the trial Court, if so advised, and the trial Court shall consider the same and make appropriate order.
7. After hearing the learned Advocates for the parties and going through the material placed on record, we are of the tentative view that, .Prima facie it appears that, the project has not been carried out strictly according to the specification and standard prescribed by KESC. The material placed on record shows that, the project has not been tested successfully 'on load'. It was tested when it was not 'on load' and. Repairs and rectification done subsequently, are indicative of the facts that primafacie the project was not completed according to required standard and specification .
8. The offence alleged to have been committed by the applicants comes within the purview of white- collar crime and such offences affect the society at large. Such offences are to be treated at entirely different plane than the offences punishable under the Pakistan Penal Code or other allied laws. The Hon'ble Supreme Court has laid down guiding principles in this behalf in the case of Imtiaz Ahmed' v. The State, PLD 1997 SC 545, para. 7 of the judgment reads as follows: "7. I may observe that a. Distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail: Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. In the absence of an exceptional circumstance may be followed, but in the latter category, the Courts should be strict in exercise of discre tion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated falling within an exceptional circumstance of the nature warranting refusal of bail even where maximum sentences is less than 10 years' R.I.
9. For the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved. The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Courts' approach should be reformation-oriented with the desire to suppress the above mischiefs. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right,guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right."
10. For the foregoing reason and respectfully following the dictum laid down by the Hon'ble Supreme Court in the case of Imtiaz Ahmed (supra) we are of the opinion that, the applicants are not entitled to be released on bail. The bail application stands dismissed accordingly.