' In view of the general complaint that one Nek Muhammad son of Wazir, resident of Village Char Choor, District Mardan, deals in narcotics business, the local police first conducted a test purchase through a police constable and thereafter conducted raid at the house of the petitioner and recovered therefrom Charas weighing 1000 grams. A case in this connection was registered vide F.I.R. No,424 dated 12-9-2002 under Articles 3/4 of the Prohibition Order, 1979, read with section 9, Control of Narcotic Substances Act, Police Station Katlang, District Mardan.
2. The petitioner moved an application in the Court of Additional Sessions Judge, Mardan for grant of bail which was rejected vide order dated 22-10-2002. The petitioner has approached this Court with the similar prayer.
3. Mr. Muhammad Ejaz Khan Hoti, Advocate for the petitioner, in support of the bail application, contended, inter alia, that the petitioner has been charged on mere suspicion and that there is no incriminating material to connect hit, with the guilt. Additionally it is submitted that house, wherefrom the Charas is alleged to have been recovered, is not in the exclusive possession of the petitioner but is a joint family house and thus recovery is doubtful. The competency of Judicial Magistrate issuing search warrant has also been challenged in view of the provisions contained in section 20 of the Control of Narcotic Substances Act, 1997. Delayed despatch of the sample to Chemical Analyst has also been brought under challenge. Concluding the arguments, it is submitted that case of the petitioner falls under section 9(b) of the Act and goes out of the embargo contained in section 51 of the Act and as such the petitioner is entitled for grant of bail.
Reliance has been placed on 2000 PCr.LJ 657 (Karachi).
4. Mr. M. Tariq laved, Deputy Advocate-General on the other hand, opposed the bail application and contended that case of the petitioner falls under the prohibition contained in section 9(c) of the Act and that the petitioner has been refused bail for valid reasons which hardly calls for interference of this Court.
5. Having heard the arguments of learned counsel for the parties in the light of the material on the file I find that Charas weighing 40 grams has been recovered from the possession of the petitioner through a fake customer (police constable in white clothes) whereas the Charas weighing 1000 grams has been recovered from the house of the petitioner during raid conducted by the local police. Apparently there is nothing on A the file to demonstrate that the, petitioner has been falsely implicated on account of ulterior motive or by the police. Prima facie, reasbnable grounds do exist in this case to believe in the petitioner's involvement in the offence alleged against him. The submission of the learned counsel for the petitioner that mandatory provisions of section 20 of the Control of Narcotic Substances Act had been flagrantly violated in this -se and contraband has not been sent to the Chemical Examiner in time, taken into consideration at this stage. The plea of the petitioner that mandatory provisions of section 103, Cr.P.C. Had not been complied with, is also without substance, in view of the provision contained in section 25 of the Control of Narcotic Substances Act. The challan against the petitioner has been submitted in Court and the trial is likely to commence in near future. Finding no substance in this application I dismiss the same.
6. Before parting with this order I would like to add that observations made above are tentative in nature and the learned trial Judge shall decide the case on the basis of the material produced before him.
Bail declined.
2003 P Cr. I, J 473 [Karachi] Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ AKHTAR HASSAN ANSARI---Applicant versus THE STATE---Respondent Criminal Bail Application No,310 of 2002, decided on 20th March, 2002.
Criminal Procedure Code (V of 1898)--- ----S. 497(2)---National Accountability Bureau Ordinance (XVIJI of 1999), S.9---Bail---Allegation against accused was that he had misused his authority---Record did not show that the accused had himself dishonestly and fraudulently in collusion with other accused derived any benefit or pecuniary advantage or allowed the others to do so by misusing his lawful authority and committed offences of corruption and corrupt practices by causing loss to public exchequer with motivation to favor any person, or made any grant, concession or caused benefit to any person or his relative as defined in S.9 of the NAB Ordinance---Prosecution could also not point out that what Rules or Office Orders were violated by the accused---Case against accused, thus,, necessitated further inquiry as contemplated under S.497(2), Cr.P.C. Making him entitled to concession of bail--- Accused was idmitted to bail accordingly. [pp. 477, 478] A & B S. Mehmood Alam Rizvi for Applicant.
Amir Raza Naqvi, Addl. Dy. Prosecutor-General, NAB for the State.
Date of hearing: 20th March, 2002.
1. Granted but subject to all just exceptions.
2. The facts leading to present bail application are that applicant/accused Akhtar Hassan Ansari is facing trial before the Accountability Court at Karachi under section 9 of National Accountability Bureau Ordinance, 1999 on the reference made by Chairman, NAB. The contents of the reference are reproduced hereinbelow in extenso:-- "Respectfully sheweth,
(1) 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 approved/sanctioned by Chairman/Managing Director/KESC on 2-9-1995 with the following three conditions:-
(i) Installation of capacitor Bank.
(ii) Payment of full estimate.
(iii) Approval of way leave from competent Authority.
(2) That the case file remained pending in Planning Department of KESC for want of payment of 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 15-11-1995 without taking into .Consideration the conditions earlier imposed by Chairman/Managing Director.
(3) That as a result contract was awarded by Harbour Authority itself to Messrs Decent Electric Service 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 No,3) passed four running bills on the following dates:--{{TABLE}}
(i) Rs,212,445 dated 7-3-1996
(ii) Rs,18,084,131 dated 8-4-1996
(iii) Rs,3,801,663 dated 27-6-1996
(iv) Rs,5,626,106 dated 5-9-1996
(4) That 10% of the amount being retention money was also released prematurely. Total cost of the project was Rs,3,49,82,990.
(5) That during investigation and from the material relied by the Investigating Officer Mr. Muhammad Hashim Qureshi, Assistant Director, F.I.A., 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 FJA by KESC through letter dated 10-12-1999 bearing No,CED-II/24/99/710 and thus accused No,1 misused his authority.
(6) That likewise accused No,2 Abdul Rahim Samoo entertained the request of self-financing made by KFHA and recommended the same to accused No,I for approval. Being a senior officer he must have knowledge of the proper jurisdiction for approval. He also did not look into the technical aspect of such policy and as a consequence hereof after getting approval he directly kept liaison with XEN (UGM) A Division, and by passing SE/Deputy Chief Engineer but never felt necessary to take any visible step to ensure the proper execution and quality of work.
(7) 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 interest 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 NESC and work was to be supervised by KESC 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 released prematurely.
(8) That during the course of inquiry, at the request of FIA physical survey of the site was conducted by KESC Authorities, and they have calculated the total length of cable actually used as 9,656 kilometres, which is far less as compared to the length 12.5 kilometres, the cost of which length with allied expenditure was paid by KFHA to the contractor under the formal verification of accused No,3 and on this account following amount was wrongly claimed by contractor and was paid by KFHA:
(i) The cost of 2844 metres cable at Rs,6,25,68,000 the rate of Rs,2,200 per metre.
(ii) Execution charges for above fake Rs,8,81,640. Length 2844 metre, Rs,310 per metre.
(iii) Jointing charges (2844 metres Rs,2,88,000). Total 9 joints: Rs,32,000 per joint Total Rs,74,26,440/
(9) that in the above case alongwith the official of KESC, one Hamidullah of KFHA was involved who has since expired on 5-6-1999, therefore, has not been made accused.
(10) That accused No,5 Sham Lal Lasi was authorised representative of Messrs Decent Electric Service. 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.
(11) That due to substandard work the net loss caused to Government on this project is Rs,24,260,840.
(12) That after having gone through the material placed before me in the shape of evidence collected during the enquiry and investigation it is just and proper to proceed further and therefore, this matter is being referred to this Honourable 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.
(13) He is, therefore, prayed that all the accused persons may be tried in accordance with the provisions of the NAB Ordinance by the Honourable Court.
' We have heard Mr. Syed Mehmood Alam Rizvi learned counsel appearing on behalf of the applicant and Mr. Amir Raza Naqvi learned Additional Deputy Prosecutor-General NAB for respondent.
' The perusal of material placed on record shows that the allegations against the applicant/accused is that he misused his authority. There is nothing on record from which it could be said that the applicant/accused himself dishonestly and fraudulently in collusion with other accused derived benefit or pecuniary advantage or allowed the others to do so by misusing his lawful authority and committed offences of corruption and corrupt practices by causing loss to public exchequer with motivation to favor any person, or made any grant, concession or caused benefit to any person or his relative to as defined in section 9 of the NAB Ordinance. It is also not pointed out by the prosecution that what rules or office orders were violated by the applicant/accused. The applicant/accused made two representations to the Chairman, NAB wherein he specifically stated that while according approval he has not violated any rules or office orders. We specifically asked the learned Additional Deputy Prosecutor-General, NAB to show any rules or office orders which have been violated by the applicant/accused. The learned ADPG, NAB has stated that there are no rules in this regard with KESC. It will be pertinent to reproduce hereinbelow the letter No,CED-11/F1.01/ 5-11-1995 and marginal order. Passed thereon by the applicant/accused on 7-11-1995 in extenso: "The Karachi Electric Supply Corporation Limited Office of the Chief Engineer (Distribution-II) ii. Ref. No,CED.II/F-1.01 dated 5th November, 1995. Manager (T&D)
Subject: Provision of power supply (3.0 MW) to Korangi Fisheries Harbour Project.
' We are in receipt of letter from Messrs Korangi Fisheries Harbour Authority vide Ref. No,KFHA/215- a/94-95 dated 30th October, 1995 on the subject cited above (copy enclosed).
' In this connection it is submitted that a provisional estimate has been issued to the authority concerned on 17-6-1995 for provision of 3.0 MW electric power for which they have shown their inability to pay - the said amount in lumpsum. Prior to this estimate an estimate of Rs,1,538,219 was issued to them which was paid on 25-5-1991 for provision of 600 KW load but unfortunately the power could not be served them so far.
' Under the circumstances, the KFHA desires to execute the electrical work of 3.0 MW by their own contractor to avoid delay in their execution of job. The same shall be carried out under the supervision of KESC's representative and shall be taken by KESC on its completion.
' To the past we have allowed such type of work done by the respective Authority i,e, the Chairman Town Committee, HubChoki is enclosed for reference.
' Keeping in view of the above, I am of the opinion that Korangi Fisheries Harbour Authority may be allowed to carry out the work as they desire in the interest of nation. If approved, the undersigned may issue the NOC to the Authority concerned. Chief Engineer (D-II).
' Approved as a special case in view of its inauguration by the Honourable PM at an urgent date please make sure it is as per our specs standards." (Underlining is ours)
' Looking towards the peculiar facts and circumstances of the case, we are of the considered view that the case against applicant/accused necessitates further inquiry as contemplated under section 497(2), Cr.P.C., therefore, he is entitled to bail. Resultantly, the applicant/accused is granted bail in the sum of Rs,1 million and P.R. Bond in the like amount to the satisfaction of the trial Court.
' If the applicant/accused possesses any passport or travelling document he should deposit the same with the trial Court.