ISLAMABAD: The Islamabad High Court (IHC) has held that the allegations levelled by the National Accountability Bureau (NAB) against former finance minister Miftah Ismail and the alleged loss to the public exchequer because of his actions in the LNG matter -- calculated by the Bureau -- is based on conjectures and presumptions.
“The crucial elements i.e. mens rea, gaining illegal and undue gain and criminal intent do not appear to be in existence at this stage,” a two-judge bench comprising Chief Justice Athar Minallah and Miangul Hassan Aurangzeb stated in its reasons for accepting Miftah Ismail’s bail through a short order on Dec 23, 2019.
The allegations against Miftah Ismail are based on the commissioning of the LNG terminal, appointment of the consultants (M/s QED Consulting and M/s MaverickAdvisory) and the award of the contract. He was appointed as a non-executive director of the Sui Southern Gas Company (SSGC) board and later its chairman. The bidding process that had ultimately led to the execution of the contract agreement was completed through an entity controlled by the Pakistan government. Assistance was also provided by the consultants appointed by the US Agency for International Development (USAID) pursuant to mutual assistance between Pakistan and the United States.
The judgment authored by Justice Minallah noted that QED Consulting was appointed by USAID while Maverick Advisory was picked by QED Consulting. The fee of both the consultants was paid by USAID and there was no involvement of public funds from the Pakistani exchequer. NAB has not been able to explain how offences under the National Accountability Ordinance (NAO) are attracted in relation to the appointment of the consultants, it said.
The order said that the allegation that the capacity charges were ‘exorbitant’ appear to be based on international practices. There is no incriminating material brought on record so far to indicate Miftah Ismail’s involvement in acts which would prima facie attract the offences under the NAO. There is also nothing on record to show that he had misused his authority.
The judgment said it was settled law and the bail is not to be withheld as a punishment. There must be the existence of reasonable grounds to prima facie establish criminality or disclose complicity to deny grant of bail. Moreover, there must be sufficient incriminating material against an accused to order the arrest in exercise of powers vested under the NAO. “The knowledge and conscious participation on part of an accused with the object of obtaining illegal means and undue benefit must, prima facie, exist to attract the offences under NAO otherwise deprivation of liberty would not be sustainable under the law. In such an eventuality incarceration of an accused would amount to ‘hardship’,” the verdict said and was relied on at multiple Supreme Court rulings.
On the touchstone of these principles and having regard to the facts and circumstances of the case in hand, the bench was of the opinion that the further incarceration of Miftah Ismail would not be tenable nor justified under the law and consequently he will be exposed to hardship. “Denial of the concession of bail in the circumstances would amount to withholding bail as a punishment. The bench is, therefore, satisfied that he is entitled to be released by extending the concession of bail.”
Miftah Ismail had invoked the extraordinary constitutional jurisdiction of the IHC challenging the powers of the NAB chairman which led to his arrest. NAB said that he was appointed as the SSGC chairman in October 2014 and held the position till Nov 2017. He was made one of the members of the price negotiation committee that had been constituted for the purpose of fixing the price of LNG that was intended to be purchased from Qatar. Its purchase, pursuant to an arrangement between the Pakistan and Qatar governments, was to be regulated and managed through the facility of LNG Terminal-I whose operation and management was awarded to M/s Engro Energy Terminal Pakistan Limited.
NAB alleged that Miftah Ismail was appointed as the SSGC chairman in order to illegally facilitate the award of the contract -- the LNG Service Agreement. The approval of the agreement was given by the SSGC board on January 28, 2014. NAB acknowledged that Miftah Ismail was appointed as the SSGC chairman on July 8, 2014. It also alleged that he had manouvred the appointment of two foreign incorporated entities as consultants - QED Consulting and Maverick Advisory. It claimed that the accused had actively played a role in the award of the contract to the terminal company at exorbitant capacity charges.
However, Miftah Ismail asserted before the IHC that during his investigation when he has been in NAB’s custody for 50 days, no incriminating material was disclosed to him attracting offences under the NAO; NAB, without any credible data or benchmarks, alleged that the capacity charges were exorbitant; QED Consulting was appointed by the USAID while Maverick Advisory was selected and appointed by QED Consulting; he was not in any manner whatsoever involved in the selection or appointment of both the consultants; he had no role in the appointment of the Inter State Gas System; he was appointed as a non-executive director of the SSGC board; and he, as the board chairman, was without the power to dictate decisions to other members.