AHAD KHAN CHEEMA Versus NATIONAL ACCOUNTABILITY BUREAU Ashtar Ausaf Ali

ORDER

Through this single order, we intend to decide above mentioned writ petitions whereby the petitioners seek bail in Reference No.50/2018 filed by the National Accountability Bureau under section 18(g) read with section 24(b) of the National Accountability Ordinance, 1999 wherein the charge framed against the petitioners is as under:

Ahad Khan Cheema (petitioner) i. that you accused Ahad Khan Cheema by misusing your authority entrusted the project to Strategic Project Unit which had no experience, whatsoever, regarding housing project under Public Private Partnership mode and you accused Ahad Khan Cheema in aid and abetment with your co-accused Bilal Kidwai and Israr Saeed (Approver), Chief Engineer, LDA prepared fraudulent and deceitful Request for Proposal (RFP) and bidding documents to grant undue and illegal benefit to Messrs SPARCO group (later Lahore CASA Developers) in the form of award of contract and your co-accused Bilal Kidwai malafidely drafted/prepared the said documents in violation of provisions of Public Private Partnership Act without mentioning the ratio of members of the consortium/JV which were, subsequently, approved by you accused Ahad Khan Cheema by misusing your authority in order to render illegal benefit to Messrs SPARCO Group (later Lahore CASA Developers). ii. that you accused Ahad Khan Cheema, Bilal Kidwai, Imtiaz Haider and Israr Saeed with criminal intent and in order to extend illegal benefit to Messrs SPARCO Group ignored percentage shareholdings of each member of JV/Consortium despite written confirmation to PPP Steering Committee in meeting held on 20.11.2014 with mala fide intentions and in order to grant illegal benefit to Messrs SPARCO Group. iii. that you accused Ahad Khan Cheema in connivance with accused Shahbaz Sharif approved feasibility study, bidding documents and PFR which were prepared in violation of PPP Act, 2014 without mentioning the respective shareholdings and role of the JV members which resulted in award of contract to an ineligible firm. Moreover, you accused Ahad Khan Cheema with mala fide intentions failed to comply deliberate with the directions of PPP Steering Committee regarding restriction on dilution of lead member shareholdings and continued the process of awarding the contract even after submission of JV agreement by Lahore CASA Developers having actual shareholdings of JV members was in sheer violation of documents submitted at pre-qualification stage but you also failed to exercise your duty to prevent any undue and illegal benefit to your co-accused. You also obtained illegal gratification from accused Nadeem Zia and Khalid Hussain (since PO) in the form of land measuring 99-Kanal 17-Marla valuing Rs.136,900/- million approximately in your own name and in the name of close relatives.

Shahid Shafiq Alam Faridi (petitioner) i. that you accused Shahid Shafiq Alam Faridi in connivance with your co-accused presented false documents of JV and obtained the contract in illegal, corrupt and dishonest manner as being C-4 company which was not eligible for the contract. However, you accused fraudulently represented Messrs SPARCO as lead member of JV whereas, as per JV agreement dated 18.05.2015 signed by you, actual lead member was Messrs Bismillah Engineering Services Co. but you accused with fraudulent intentions obtained constructive possession of land reserved for Ashiana Iqbal project and wilfully failed to complete the project which caused loss to Government Exchequer; ii. that you all the accused persons, in active aid, abetment and connivance with each other and your co-accused (since PO) dishonestly and with mala fide intentions misused the authority in order to gain/render illegal benefit for themselves and for your co-accused. Furthermore you all accused also wilfully failed to exercise your authority in order to prevent grant of contract to your co-accused and also accepted illegal gratification while indulging in offences of corruption and corrupt practices. Hence, you accused in connivance with each other, have fraudulently and dishonestly caused loss to the National Exchequer to the tune of Rs.660/- Million approximately. Thus, in connivance with each other have committed offence of corruption and corrupt practices as defined under section 9(a)(i)(ii)(iv)(vi) and (xii) punishable under section 10 of the National Accountability Ordinance, 1999 and schedule thereto which is within the cognizance of this Court.

2. Learned counsel for the petitioner, namely, Ahad Khan Cheema argued as under: i. that the mandate of the petitioner was documentation and the execution and that contract was not awarded by the petitioner; ii. that an application was filed under section 20 of the Arbitration Act, 1940 by the petitioner Shahid Shafiq Alam Faridi, Chief Executive Lahore CASA Developers/SPARCO group against Punjab Land Development Company which is pending adjudication and thus the dispute is civil in nature; iii. that no loss, whatsoever, was caused to the public exchequer; iv. that no recovery was effected from the petitioner during the investigation; v. that the assumption of jurisdiction by the respondent bureau upon an anonymous complaint containing general and bald allegations without any supportive evidence was illegal and without lawful authority; vi. that the cancellation of the contract on 17.04.2017 by the PLDC board many months prior to any complaint negates the false motive setup by the prosecution; vii. that it was established through overwhelming evidence available on record that the project was publicized both at National and International level, convening investors conference, availability of RFP, bid documents free of cost on both LDA and PPRA websites, receiving of the same by 86 parties, two extension in bid submission deadline and 30 minute extra time for bid submission also negate the hypotheses that this exercise was for any personal gain to the petitioner; viii. that multiple department, bid opening project and financial evaluation committee including representatives of various departments as members was constituted by the petitioner, thus, allegation of any influence by the petitioner upon the said committee was unfounded and unjustified; ix. that no one, whosoever, lodged any complaint before any forum, whatsoever, to doubt the process and this fact alone was sufficient to belie the allegation of awarding contract inclusion or in connivance with anyone; x. that as per record no dilution of share members have taken place after submission of JVA till termination of contract and that the information under section 14(d) of PPP Act ibid has no consequence, whatsoever, because this proposed shareholding was submitted for information and not for evaluation; xi. that the statements of Israr Saeed and Arif Majeed were recorded in absence of the petitioner, thus, the admissibility of those statements would be adjudged by the learned trial court, at trial; xii. that the relatives of the petitioner including Ahmad Hassan and Masoor Hussain filed writ petition before this Court and denied to be "benamidar" of the petitioner or any interest of the petitioner in their properties and that they are contesting their ownership before the trial court; xiii. that the petitioner was arrested on 21.02.2018 and is behind the bars from the last more than two years; xiv. that there were 86 prosecution witnesses and 9 witnesses have been recorded so far, the trial has not witnessed any material progress and the conclusion thereof is not insight in near future, the delay cannot be attributed to the petitioner in any manner; and xv. that the question of the guilt of the petitioner requires further inquiry, thus, the petitioner be released on bail.

3. Learned counsel for the petitioner Shahid Shafique Alam Faridi contended that contract awarded to the petitioner was cancelled by the PLDC well in time, the petitioner has incurred huge expenses from his own pocket and the project remained unexecuted as no development work including the completion of metalled road, electrification etc was carried out at the spot; that co-accused of the petitioner including Sajjad and Munir Zia have been admitted to bail by the apex Court, thus, rule of consistency is attracted in this case and the petitioner is also to be treated alike; that all the co-accused except petitioners and proclaimed offenders have been admitted to bail by this Court and the apex Court; that the physical custody of the petitioner was not required to the Investigating Agency; that no recovery was effected from the petitioner; commencement of trial is no clog to the grant of bail if the accused is entitled to the same relief, on merits; that there is no likelihood of the early conclusion of the trial; that the kind of allegation levelled against the petitioner requires deeper appreciation of evidence not permissible at this stage; that the petitioner was first offender and have no previous record. Adds that culpability of the petitioner needs serious consideration, in the circumstances, the petitioner is entitled to bail.

4. Learned Special prosecutor for NAB submitted that the delay in the trial is not attributable to the prosecution; that after the framing of the charge nine witnesses have been examined; that the prosecution may not examine all the witnesses and that trial is likely to be concluded in near future. He further contended that the PWs implicated the petitioners in their statements recorded under section 161, Cr.P.C.; that the approvers also lend sufficient corroboration to the prosecution story; that during the investigation certain recoveries were also effected from the petitioner Ahad Khan Cheema, reports of experts were also collected; that the petitioner was a public office holder, involved in case of corruption and corrupt practices and as there was sufficient incriminating material available against them on record, thus, this court may not allow bail to the petitioners in Constitutional Jurisdiction.

5. We have given hearing to the learned counsel for the parties, gone through the record and given anxious considerations to the submissions made.

6. It is emerged from record that a complaint dated 31.10.2017 was received by Chairman NAB against management of Public Sector Companies. Allegations of misappropriation and embezzlement were also levelled against the management of those companies. Accordingly, inquiry No.1(9)HQ/1826/NAB-L was authorized on 15.11.2017. Another complaint dated 17.11.2017 against M/s Paragon City (Pvt.) Limited and management of Punjab Land Development Company was also received. The complainant alleged illegal occupation of 3100-Kanal State land against Messrs Paragon City in connivance with officers/officials of Punjab Land Development. This land was proposed for the project of Ashiana-e-Iqbal. The inquiry was authorized on 10.01.2018, later on, this inquiry was upgraded into investigation and ultimately, A.C.R. No.50/2018 was filed.

Punjab Land Development Company is owned by Government of Punjab and was registered on 09.03.2010 under section 32 of the Companies Ordinance, 1984. Its prime responsibility was to develop modern housing schemes for low-income groups in various Districts of Punjab. Initially, the company accomplished projects including Ashiana-e-Quaid, Lahore, Ashiana Sahiwal and Ashiana Faisalabad under Government Financing Mode. Another project, namely, Ashiana-e-Iqbal was also initiated at Burki Road, Lahore in the year 2011-2012 under the same mode. After observing the formalities, the lowest bidder, namely, Messrs Ch. A. Latif & sons was awarded contract on 24.01.2013. The contractor was issued mobilization advance of PKR 75.00 Million. The contractor also started work at the project. However, said contractor was paid Rs.5.9 million by Punjab Land Development Company as a settlement with mutual consent to withdraw from said contract. After the cancellation of the contract, the then Chief Minister directed the Punjab Land Development Company to entrust the project of Ashiana-e-Iqbal to Lahore Development Authority for the purposes of planning, designing and execution of the project. At that time Lahore Development Authority was headed by the petitioner Ahad Khan Cheema as Director General.

At this stage, it may be mentioned that at pre-qualification stage a consortium was formed including first China Metallurgical Construction Company and then substituted by Messrs Anhui construction Company, Messrs SPARCO Construction Company and Messrs Bismillah Engineering Services Company. The amended partnership of firm reflects that petitioner Muhammad Shahid Shafique Alam Faridi had 80% share whereas, the remaining 20% share were owned by Munir Zia, co-accused of the petitioner. The award of illegal contract in favour of Bismillah Engineering Service Company and accomplishment of the task contrary to law and rules, by the petitioner Ahad Khan Cheema are precisely the allegation levelled against the petitioners and subject matter of the Reference.

7. First, we shall deal with the role of the petitioner, namely, Muhammad Shahid Shafique Alam Faridi. A consortium, namely, Lahore CASA Developers was awarded contract to execute the project. It was to be completed under Public Private Partnership (PPP) mode. The proposed 3100-Kanal land for the project was, allegedly, adjacent to Messrs Paragon City (Pvt.) Limited, thus, the said company had keen interest in the land of the project. Amongst the directors of the said company was Nadeem Zia (P.O.), a real brother of the co-accused of the petitioner, namely, Munir Zia. The record revealed that Bismillah Engineering Services Company was a proxy company, which acted on behalf of Messrs Paragon City (Pvt.) Limited as the bid security amount of Rs.50,000 million and equity amount of Rs.1.600 million was arranged from the bank accounts maintained by Nadeem Zia, Director of Messrs Paragon City, which established the link between both the companies. We may also mention that according to the contract awarded, Lahore CASA Development had to construct 6400 flats on 1000-Kanals in the form of G Plus 3 High rise flats and the consortium had to get 2000-Kanal land from the Government. The land, however, was to be transferred to the contractor in proportionate manner i.e. equal to percentage of completed flats. The worth of construction of 6400 flats was Rs.13.46 Billion and worth of remaining 2000-Kanal land was 15.400 Billion. The available record reflects that Messrs Bismillah Engineering Services Company got the license of Category C-4 from Pakistan Engineering Council, the construction/capital cost of which could not exceed Rs.200 million. It is also worth mentioning that at pre-qualification stage Memo of understanding was filed by the consortium. There was no mention regarding percentage of the respective shares, which is violative of section 14(d) of Public Private Partnership Act, 2014. It would not be out of place to mention here that a joint venture agreement dated 15.05.2015 was shown by the Special Prosecutor NAB, not controverted by the learned counsel, evidencing that Messrs Bismillah Engineering Services Company was lead member with 90% share. Whereas, Messrs SPARCO second JV Member and third JV Member had 9% and 1% shares, respectively. Why the percentage of respective shares was not mentioned in Memo of Understanding and how Messrs Bismillah Engineering Services, a company of category C-4 assumed the role of lead member with 90% shares?, learned counsel for the petitioner could not explain the circumstance, satisfactorily. Admittedly, the petitioner being partner of category C-4 firm was the main beneficiary of the contract. The PWs have also implicated the petitioner in their statements recorded during the investigation.

The case of the petitioner is also distinguishable from his co-accused including Munir Zia and Sajjad as they were not signatory to the Joint Venture Agreement and the petitioner claimed himself to be a Chief Executive of Lahore CASA Developers in the above referred application filed under section 20 of the Arbitration Act, 1940 and, thus, the case of the petitioner is not at par with the said co-accused and rule of consistency is not attracted, in the case.

8. A review of record demonstrates that the petitioner, namely, Ahad Khan Cheema performed as Director General, Lahore Development Authority from 2013 to 2016. The project of Ashiana-e-Iqbal was entrusted to Lahore Development Authority. The mandate of the petitioner was planning, designing and execution of the project. The procedure opted for earlier projects i.e. Government Finance mode was not to be adopted and the project was to be completed under Public Private Partnership. The government of Punjab never undertook a housing project under the Public Private Partnership mode earlier. The petitioner got prepared the feasibility report from his co-accused, namely, Bilal Kidwai. At this stage, it may be mentioned that under government financing mode, feasibility for this project was prepared by Messrs KPMG, a renowned international audit and consultant firm which opined that project was feasible under the Government Financing Mode. It is required under section 7(d) of Public Private Partnership Act, 2014 to hire transaction advisors for preparation of feasibility studies and bidding documents if the government agency does not have relevant expertise but the petitioner got prepared feasibility of the project, bidding documents, i.e. request for proposal (RFP) and draft development agreement through his co-accused, namely, Bilal Kidwai admittedly, not expert within the meaning of Public Private Partnership Act, 2014 and presented the same in 17th meeting of steering committee constituted under the Public Private Partnership Act, 2014. The Public Private Partnership cell also made certain observations. One of the observations was that dilution of lead member shareholding shall be restricted in view of section 14(d) of Public Private Partnership Act, 2014, which stipulates that in case the person is consortium, its members, their roles and their proposed shareholdings shall be disclosed at the pre-qualification stage. As mentioned in the preceding para Memo of Understanding signed by the JV Members was silent about their shares. However, Messrs SPARCO was on top i.e. at No.1 and Messrs Bismillah Engineering Services Company at serial No.3 suggesting Messrs SPARCO as lead member whereas, in the JV agreement Bismillah Engineering Services Company by way of somersault was at No.1 being lead member with 90% shares. Though the petitioner agreed before the committee to proceed in accordance with the said observation but failed to rectify the said defects. During the investigation, convener of the Technical Financial and Evaluation Committee, namely, Israr Saeed got recorded his statement under section 161, Cr.P.C. which suggested that the petitioner directed him to follow RFP criteria, violative of Public Private Partnership Act, 2014. During the investigation Agha Waqar Javed Head of Public Private Partnership Cell got recorded his statement under section 161, Cr.P.C. to the same effect. Formal agreement regarding Ashiana-e-Iqbal project between Punjab Land Development Company and Lahore Development Authority was signed on 27.01.2015, however, after award of the contract, the petitioner failed to execute the same. This fact is also confirmed by the statement of Arif Majeed Butt, examined under section 161, Cr.P.C. His statement also supported Israr Saeed that pre-qualification was carried out strictly in accordance with RFP, in violation of Public Private Partnership Act, 2014.

9. The allegation of illegal gratification finds support from the statements of Mohsin Nadeem recorded during the investigation giving details of the properties alienated in favour of Shahid Shafique Alam Faridi, Ahmed Hussain, Sadia Mansoor, Mansoor Ahmad and Nazia Ashraf (close relatives of Ahad Khan Cheema), the petitioner. The statements of witnesses including Muhammad Kashif son of Muhammad Shafique, Akbar Ali son of Din Muhammad and Akbar Ali son of Boota lend further strength to the above allegation. No ill-will or animosity was attributed to any of the PWs for false implication of the petitioner. Deeper appreciation of evidence cannot be undertaken at this stage and the Court only has to sift the material tentatively. The investigation agency also concluded against the petitioner.

10. It is one of the white collar crimes case which are usually committed in planned manner by well-organized persons and they work underhand mechanism. In such cases, the standard of evidence normally available in the ordinary circumstances cannot be expected. They are totally different in nature from common crimes that take place in the society.

11. In such like cases, documents are generated prior to or during the commission of that offence which is essential and normally make up the major part of evidence. Bank records, accounting records, legal documents or instruments are normally the bases for the case. They may very well prove the circumstances around the alleged offence but they may not necessarily provide all the essential elements of the criminal charge e.g. the intention of the subject. The personal records like items including personal correspondence, notes in daily timers, mobile phone records must not be overlooked as there may be the evidence needed to prove the element that was not readily apparent in the books and record.

12. With regard to the contention that this matter does not fall within the purview of NAB under the National Accountability Ordinance as it falls within the exclusive domain of civil law being contractual liability. The National Accountability Ordinance, 1999 is a special law with overriding effect over other laws and provided that the transaction/act complained of falls within section 9 of the National Accountability Ordinance, 1999, thus, National Accountability Bureau has jurisdiction over the matter and can proceed to inquire and investigate into the same. The offences alleged to have been committed by the petitioners come within the purview of white collar crimes and such offence affect the society at large. The allegations against the petitioners were not only of cheating or defrauding an individual but causing huge loss to Public-exchequer. Hence, prima facie, the case of the petitioners falls in exceptional circumstances where the bail could only be granted when the court comes to the conclusion that material available on record, prima facie, is not sufficient to link the accused with the commission of offence as this brings a case within the meaning of ''further enquiry'' where release of the accused becomes a matter of right.

13. We find that National Accountability Ordinance, 1999 was promulgated as a measure for recovering state money and for checking corruption and corrupt practices and for taking action against those who misused their power and authority while enriching themselves at the cost of society. Therefore, to say that this was a civil liability under the circumstances is no argument for a case covered by the National Accountability Ordinance, 1999. It is worth mentioning here at this juncture that alleged offence and its mode of commission falls within the ambit of "white collar crimes" which has its own salient features and peculiar circumstances and, therefore, a line of distinction is to be drawn between an ordinary offence and that of a ''white collar crime'' which is to be kept in view while sifting the evidence and approach for such evaluation must be dynamic so that conjectural presumptions and hyper technicalities having no nexus with the merits of the case could be eliminated even at the bail stage.

Thus, it is imperative for the accused to show that he has no nexus with crime even if the material collected by prosecution is tentatively taken as correct. On the other hand, the available record suggests that the petitioner Ahad Khan Cheema was key-player and as the documentation was his domain so he managed the award of contract to his co-accused i.e. the petitioner Muhammad Shafique Alam Faridi. Thus, in our view, there was sufficient incriminating material to believe that the petitioners were linked interse and with the offences with which they are charged. The charged offence is one of causing loss to public Exchequer, thus, it was not an ordinary offence.

The ground of hardship/inordinate delay in conclusion of trial was also urged by the learned counsel for the petitioner. The record divulged that the petitioner was arrested in this case on 21.02.2018. The trial commenced on 18.02.2019. During trial, nine witnesses have reportedly been examined. However, the interim order sheet of the learned trial court appended by the learned counsel for the petitioner along with Criminal Miscellaneous No.1 of 2020 reflects that certain adjournments were sought for on behalf of the petitioner, thus, the delay cannot be attributed to the prosecution alone. This question was also dealt with by the apex Court in case titled 'Tallat Ishaq v. National Accountability Bureau through Chairman and others' (PLD 2019 SC 112) wherein their lordships ruled:

(d) In an appropriate case through exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 a High Court may grant bail to an accused person arrested in connection with an office under the National Accountability Ordinance, 1999 and section 9(b) of the said Ordinance does not affect the jurisdiction of a High Court conferred upon it by the Constitution. The Constitutional Jurisdiction of a High Court is, however, an extraordinary jurisdiction meant to be exercised in extraordinary circumstances and not in run of the mill cases or as a matter of course.

(e) .

(f) Ordinarily bail is allowed to an accused person on the ground of delay only where the delay in the trial or the period of custody of the accused person is shocking, unconscionable or inordinate and not otherwise. The primary consideration for grant of bail on the ground of such delay is undue hardship and more often than not prima facie merits of the case against the accused person are also looked into before admitting him to bail on the ground of delay.

14. The petitioners have been specifically named and assigned specific role as perpetrators of the crime. The statement of the PWs recorded during the investigation can validly be taken into consideration at this stage. There is sufficient material to believe that the petitioners are linked with the offences and one of the charge is causing huge loss to public exchequer, therefore, it was not an ordinary offence. Reference can be made to the case of "Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another" (2012 SCMR 1945) wherein the Hon'ble Supreme Court of Pakistan cancelled the bail with the following observations:

"We are cognizant of the law that once the High Court has exercised his discretion of granting bail to the respondent No.1, there has to be very special and overwhelming circumstances to cancel the bail. In the case of "Naseem Malik v. The State" (2004 SCMR 283), this Court has cancelled the bail on inter alia, the ground that the accused was specifically named and comprehensively described in the FIR as one of the conspirators and perpetrators of the crime and it was noted that the statement of co-accused implicating the accused can validly be taken into consideration while deciding such matters. As discussed above, there is an apparent connection of the respondent No.1 in the commission of alleged crime in this case and there is sufficient material to connect him with the same. The High Court apparently has misread the record in this regard in granting of bail to respondent No.1. We, therefore, do not consider this case was such that respondent No.1 ought to have been granted bail."

The petitioner Ahad Khan Cheema, at the relevant time, was a public servant. The petitioners played definite roles. The record suggested that they facilitated each other to obtain pecuniary advantage within the meaning of section 9 of National Accountability Ordinance, 1999. Their acts were anything but not intended in the public interest. It was argued that no actual loss has been occasioned thereby to public-exchequer but record reflects otherwise. It goes without saying that white collar crimes of such a nature affect the whole society even though they may not have any immediate victim.

15. Considering in totality the facts and circumstances of the case and the allegation against the petitioners, the material available on record connects them with commission of alleged offence, therefore, they do not deserve to be enlarged on bail. Accordingly, we proceed to dismiss the petitions, being meritless.

However, it is clarified that the above observations are based on available record and tentative in nature, thus, the learned trial court shall not be influenced thereby in any manner, at trial.

We may also observe that it is an old matter and still under adjudication, thus, the learned trial court is directed to conclude the trial within four months after the receipt of copy of this order.

MH/A-31/L Petition dismissed.