' MUHAMMAD AFZAL SOOMRO, J.---Through these two Constitutional Petitions, proposed to be disposed of by this common order, Petitioners. Akhtar Ali and Khamiso Khan Memon, have approached this Court under its Constitutional jurisdiction seeking anticipatory bail and bail after arrest, respectively, in a Reference (bearing No.32/2003) moved in the Court of Administrative Judge Accountability Courts, Sindh at Karachi for the reason that learned Accountability.Court has no authority to consider their bail plea.
2. The brief facts as enunciated in the said Reference are that on acomplaint of Mr. Muhammad Ismail Khuhro, resident of Khairpur City, the petitioners were taken into custody by the then Chief Ehtesab Commissioner (CEC) on serious allegations of embezzlement regarding funds in respect of Shah Abdul Latif University Khairpur and violation of rules in the construction of new Campus of the said University were levelled. It is further disclosed in the Reference that it was also reported that the Government had sustained an approximate loss of Rs.69,371,971 in such embezzlement.
However; the Chief Ehtesab Commissioner referred the matter for investigation to the Ehtesab Cell under the Ehtesab Act, 1977 from where the matter was directed to be investigated upon by the ACE Government of Sindh and Investigating Officer submitted his report. According to Investigation Report a Development Scheme Phase-I, consisting of 468 acres of land, amounting to Rs.150 million was prepared and submitted to Ministry of Education by theUniversity Management and finally approved by Executive Committee of National Economic Council (ECNEC).
3. Khamiso Khan Memon. Petitioner in C.P. No. D-41 of 2004, and accused Dr. A.Q. Alvi were appointed as Project Director and Chief Consultant for the Project, respectively. As per agreement Dr. A.Q. Alvi was responsible for the development of the Scheme and fore the entire supervision of the said Project. On 17-10-1980, both the above-named persons inspected the site and a report in respect of feasibility was submitted to the Vice-Chancellor Mr. Abdul Hameed without ascertaining the bearing capacity of soil, a pre-requisite for preparation of technical feasibility. Tenders for various works on the above Project were called in 1990 and the work awarded to the Contractors (accused Nos.10 to 22 in the Reference). But on account of poor-sub-standard quality of work performed by the said contractors and criminal negligence on the part of Petitioner, Khamiso Khan Memon and the (accused Nos.2 to 9 in the said Reference) the project collapsed and buildings are lying abandoned since their construction.
4. In the Reference, all the accused persons, including said Khamiso Khan Memon, being enlisted at Serial No.1 have been assigned criminal responsibility. It is further disclosed in the said Reference that the evidence, material and reports of Technical Officers as well as of B&R Research Laboratory Hyderabad revealed that accused Nos.8 and 9 miserably failed to perform their respective duties as per agreement, thus committed acts of breach of trust in the management of the University affairs whereas the petitioner, Khamiso Khan Memon, and accused Nos.2 to 7 in the Reference misused their authorities and aided/abetted the illegal acts of accused Nos.10 to 22 who received over and above payment of their construction work and cheated the management of the said University by using sub-standard material and leaving work incomplete. Thus all of them were involved in the act of corruption and corrupt practices and as per audit report caused a loss of Rs.69,371,971 to the Public Exchequer and thereby committed offence of corruption and corrupt practices as defined in section 9(a) of National Accountability Ordinance 1999, punishable wider section 10 of the said Ordinance.
5. Resultantly, on the appraisal of material a reference in terms of section 16(c) of National Accountability Ordinance, 1999 was filed in the Court having jurisdiction.
' We have heard Mr. M. Ilyas Khan for petitioner Khamiso Khan and Mr. Aamir Raza Naqvi on behalf of Petitioner Akhtar Ali Mahoto and Mr. Amanullah Khan for the Respondents.
6. It has been contended by the learned counsel for petitioner, Khamiso Khan Memon, that he is innocent and has been falselyimplicated in the case. It has, also, been contended by the learned counsel that an unbroken line of departmental inquiries were conducted for the last almost 10 years wherein petitioner, Khamiso Khan Memon, was not found guilty of criminal negligence and/or misconduct within the purview of section 9 of the NAB Ordinance i.e. Offence of corruption and corrupt practices as enumerated in section 9(a)(i)(ii)(vi). It has also been contended by the learned counsel that a detailed enquiry and exhaustive probe was conducted by the then Ombudsman (Mohtisab) Sindh wherein it was held that the Project Director (petitioner in C.P.
No.41/2004) is not soil expert but a seasoned engineer heading the engineering department of the University and he should have warned the authorities of the impending disasters Which could occur earlier but he was not found guilty of any criminal misconduct or corrupt practices.
7. It has, further, been contended that only on account of heavy monsoon downpour, created havoc during the mid of 1994. The magnitude of the rain was adjudged as 542.30 ml. It was added that the structure of the building was such that not only the cracks had occurred on account of unequal swelling of underground soil as a result of entry due to rain-water. However, since the selection of the site was the sole responsibility of the High Powered Management Committee under the Chairmanship of Vice-Chancellor Sindh University. Feasibility report was prepared by Dr. Alvi and his consultants. The selection of the site commenced in early 1986 when the petitioner was not an employee of the University but was working in Saudi Arabia.
8. The learned counsel further argued that there is no evidence of any kind of collusion, connivance, conspiracy or of any benefit to the petitioner so as to bring the offence within the purview of section 34 or 109/120-B P.P.C. The mere fact that the petitioner was charged for trial in Accountability Court, does not give rise to a presumption of guilt in respect of an offence under section 9(a) of the NAB Ordinance 1999.
9. Learned counsel appearing for petitioner Akhtar Ali in C.P. No.D-1576/2003, in addition to above contentions, has contended that the failure of project was due to wrong selection of site and since he has played no role in site selection, the question of material used in construction is irrelevant and without fact finding. It has, also, been contended that since the supervision was required to be done by the Consultant, the Petitioner appears to be innocent. It has, further, been stated by the learned counsel that the Reference has already been filed and the investigation has been completed, there seems no need to keep the petitioner in custody. It has, also been canvassed by the learned counsel that there is clear mala fide on the part of the prosecution in asmuch as no substantive material could be available with the prosecution to establish the charge of criminality or criminal act on the part of the petitioner except evidence of one witness having no corroboration from an independent source.
10. On the other hand, Mr. Amanullah Khan, learned counsel for the Respondent, has vehemently opposed the grant of relief of bail sought by the petitioners. Incidentally, he placed on record copies of inquiries reports conducted by committees constituted by the Syndicate of University.
The Enquiry Committee headed by Hon'ble Mr. Justice Abdul Hameed Dogar (now Judge, Supreme Court) found petitioner Akhtar Ali Mahoto guilty of the charges of failure to carry out the work entrusted to him according to estimates and specifications. Use of substandard material and instrumental in over payment of the amount of Rs.757,332 to contractors beyond a reasonable doubt. It was recommended that major penalty be imposed on him and legal efforts be made to recover the money misappropriated by him in league with others. The second report pertains to petitioner Khamiso Khan where the enquiry was conducted by a committee comprising of our learned brother Ali Aslam Jaferi-J and Professor Umer Bin Muhammad. It was found that the consultant had categorically stated in his report dated 20-6-1990 that the soil was treacherous and required complete water seal. Nevertheless, the Petitioner Project Director did not advise the Vice-Chancellor not to start work at such a site. It was also inter alia found that the said Petitioner failed to maintain technical control and financial discipline and payments were made to contractors without any check and verifications on his part. Even after the exposure resulting from the rainfall in 1994 and despite specific directions from the Federal Education Minister on 30-9-1994 and the Chancellor on 11-8-1995 work was allowed to continue till March 1996 and "further investment of the public money clearly shows that it was being spent in a callous manner and obviously for ill motives and designs to cause wrongful loss to Government and wrongful gain by all the persons involved in it". The committee recommended imposition of a major penalty upon petitioner Khamiso Khan.
11. From the above, it is quite apparent that the petitioners' plea to the effect that they were never found guilty in any of the inquiries is clearly not sustainable. No doubt, we are conscious of the fact that in Constitutional petition seeking bail in NAB cases the Hon'ble Supreme Court has proceeded to take the view as is evident from Haji Ghulam Ali v. The State (2003 SCM R 597) bail could be granted on any ground available under section 497 Cr.P.C. At the same time, while offences under the NAB Ordinance are punishable with 14 years imprisonment and therefore grant of bail would be an exception rather than a rule.
Their Lordships have taken a far stricter view even in those cases where corruption of public officials was punishable with less than 10 years imprisonment in Imtiaz Ahmed v. The State (PLD 1997 SC 545) and it may be ,useful to produce the following observations: "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 mischievous. 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".
12. The above observation of the Hon'ble Supreme Court leads us to hold that both the Petitioners have failed to make out a case for grant of bail and also could not convince us for showing grace in respect of their bail pleas. In our view they are not entitled to the relief claimed in these Constitutional petitions and, therefore, we are left with no option but to dismiss both these Constitutional petitions in limine. Order accordingly.