BEFORE THE HONORABLE LAHORE HIGH COURT LAHORE

Writ Petition No._____________/2016

1. M/s. Maqbool Associates (Pvt.) Limited, a company duly incorporated under the
Provisions of the Companies Ordinance 1984, having its office at House No.5, Agha
Khan Road, Sector F-6/3, Islamabad through its duly authorized attorney Mr Muhammad
Ayub s/o Muhammad Yaqoob.

2. M/s Chaudhry Abdul Latif and Sons Co Ltd, a company duly incorporated under the
provisions of Companies Ordinance 1984, having its office at No.262, Street No.69, G-
10/3, Islamabad, through its duly authorized attorney Mr Muhammad Ayub s/o
Muhammad Yaqoob.

3. M/s Maqbool – CALSONS JV, a joint venture having its office at House No.5, Agha
Khan Road, Sector F-6/3, Islamabad through its duly authorized attorney Mr Muhammad
Ayub s/o Muhammad Yaqoob.

….Petitioners

VERSUS

1. The Anti-Corruption Establishment, 2-Fareed Kot House, Lahore through its Director
General.

2. The Lahore Development Authority (LDA), through its Project Director (PD), Orange
Line Metro Trains, Lahore, Mazhar Hussain Khan, Khayaban-e-Firdousi Road, 467-D/II,
M.A. Johar Town, Lahore.

3. NESPAK, through its Chairman, Muhammad Younas Dagha, 1-C, Block-N, Model
Town Extension, Lahore.

4. Government of Punjab, through its Chief Secretary, Lahore Secretariat, Lahore.

….Respondents

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF PAKISTAN 1973

It is Respectfully Submitted that;

1. The addresses of the parties given above are sufficient for the proper provision of
summons and notices as may be deemed necessary by this Honorable Court from time to
time.

2. Through this instant Writ Petition the petitioners wish to prevent their undue harassment,
stigmatization and vilification of their good name by assailing the inquiry/investigation
being conducted into them by the Respondent No.1 on account of the fabricated and
patently untrue complaint of the Respondent No.2.

(A copy of the complaint of the Respondent No.2 addressed to the Respondent No.1
dated 18.11.2016 is appended herewith as Annexure “A”).

3. The Petitioners are private independent contractors who have worked on the construction
of several high profile projects around Pakistan, including projects in all the major cities
of the country. Their quality of work or integrity has never been questioned and their
fairness in financial dealings is what has led to their attaining several quality projects in
such a short period of time.

4. The Respondent No.1 is the Anti-Corruption Establishment gaining its authority from the
Punjab Anti-Corruption Establishment rules 2014 and is specifically charged with
looking into instances of corruption of Public Servants. The Respondent No.2 is a
government institution given charge of the Orange Line Metro Train Project whereas the
Respondent No.3 is a private limited Company that offer Consultancy in Engineering
services and related Projects. The Respondent No.4 is the Government of Punjab and the
overall incharge of the province and of the Respondent No.2.

5. The Brief facts of the case are that the Petitioners were awarded a contract via agreement
dated 30.09.2015, wherein they were required to carry out civil works of the Lahore
Orange Line Metro Train Project within a period of 310 days for the price of
Rs.18,065,773,185/-. The project comprised of a 13.4 Kilometer track from Chauburgi to
Ali Town, incorporating 13 stations and a structure consisting of 5000 piles and 657 pile
caps amongst other items.

6. Due to delays and confusions on the part of the Respondent No.2 and 3, the Petitioners
were not able to complete the project within the stipulated (and unrealistic) timeframe
provided by the Respondent No.4, although they did manage to complete 52% of the
work. The delays were down to the following actions of the Respondents:

a. import of equipment from far off China rather than local companies in violation
of contractual terms on the insistence of Respondent No.2,

b. disruption due to land acquisition issues on part of Respondent No.2,

c. a piling collapse on account of inadequate soil investigation report of Respondent

No.3,

d. a stay order of the Lahore High Court since January 20 th 2016, regarding work
around Chauburgi because of the inefficient planning of the Respondents No.2 &
4.

7. These delays and inefficiencies on the part of the Respondents No.2-4 coupled with the
heavy losses that the Petitioners had sustained financially on account of the Project led
 the Petitioners to cut their losses on the project and repudiate the contract on 03.10.2016
via a notice. The loss sustained on the project amounted to Rs.5,950,720,527/- and this
was promptly followed by the fraudulent attempt at encashment of the Performance
Security of Rs.903,288,659/-. As a consequence the Petitioners filed a Civil Suit for
Declaration, Recovery and Permanent Injunction on 04.10.2016 to not only recover the
lost amount but also prevent the encashment of the security. Interim relief was granted by
the learned Civil Judge and a local commissioner was appointed to determine the liability
of each party.

(A Copy of the relevant Order Sheet of the learned Civil Judge Lahore starting at
04.10.2016 is appended herewith as Annexure “B”).

8. It would be pertinent to highlight at this juncture that the Respondent No.2 is not in any
way willing to co-operate with the appointed local commissioner and are hindering him
from working on the case or being able to join and inspect on the site. A manifestation of
this is the Interim Report of the local commissioner and the objection petition filed before
the learned Civil Judge, Lahore.

(A copy of the Interim Report of the Local commissioner and objection by the
Respondent No.2 to the local commissioner is appended herewith as Annexure “C 1-
2”).

9. A primary reason for their unwillingness to co-operate is that an inspection by the local
commissioner would reveal that the Respondent No.2 has unlawfully taken over two
rented properties of the Petitioners of 142 Km and 100Km respectively, both situated at
main Raiwind Road, Lahore (hereinafter collectively called “the camp office”). In
addition the Respondent No.2 in person entered the camp office along with police
officials and several persons in plain clothing, beating employees, destroying and stealing
equipment and evacuating the camp office to effect the takeover. Several attempts at
lodging formal complaints have failed on account of the obvious clout of the
Respondents No.2 & 4 and the last resort of the Respondents was to send letters dated
04.10.2016 & 07.10.2016 to the Inspector General of Police (IG), Punjab requiring an
FIR to be registered. However, such is the influence of the Respondents No.2 & 4 that no
action has as of yet been taken.

(Copies of the Rent agreements of the camp office and letters dated 04.10.2016 &
07.10.2016 to the IG Punjab requiring lodging of an FIR are appended herewith as
Annexures “D 1-2” and “E 1-2” respectively).

10. Moreover, in violation of section 16(2) of the Public Procurement Rules 2014 (PPRA
Rules) and without carrying out a measurement process to determine the risks and costs
of the Petitioners as per the terms of the contract, the Respondent No.2 re-advertised the
project and attempted to award the contract to a third party. The Petitioners have duly
challenged this move before the Honorable Lahore High Court, Lahore and notices were
issued to the Respondent No.2, 3 & 4 on 20.10.2016, in a matter which is currently
subjudice before this Honorable Court.

(A copy of the order of the Honorable Lahore High Court Lahore dated 20.10.2016
is appended herewith as Annexure “F”).

11. As the Respondent No.4 has an election to win within 2 years and is vastly reliant on this
project and the Respondent No.2 is locked in various forms of litigation, both civil and
potentially criminal, with the Petitioners, they decided with mala-fide intentions and
 malice as their driving force, to misuse the Respondent No.1, an executive functionary to
malign, harass and vilify the Petitioners by lodging a complaint with them regarding
failure of the Petitioners to execute 22 Piles (out of 5000) at Grid Nos.358 & 359 as per
the required specifications and somehow terming this as corruption.

12. The Respondent No.1 bowing to the overbearing political influence of the sitting
government who must appease their voters, has commenced the persistent harassment
and stigmatization of the Petitioner. They are therefore severely aggrieved on account of
this, leaving them with no other alternate or adequate remedy but to approach this
Honorable Court on the following:

GROUNDS

A. That the actions of the Respondent No.1 are without jurisdiction as per Section 5 of the
Punjab Anti-Corruption Establishment Rules 2014. It is clearly specified therein and in
the objects of the rules that the Establishment may only inquire into, investigate or
proceed against Public Servants and the Petitioners being private contractors do not fall
into the definition of this term. Therefore, the actions of the executive body are without
jurisdiction, patently illegal and worthy of being struck down by this court in exercise of
its powers of judicial review.

B. That even otherwise, executive actions tainted by malice and mala-fide intentions are
liable to be struck down by this Honorable Court in writ jurisdiction. The actions of the
Respondent No.1 at the behest of the Respondent No.2 are nothing but a counterblast to
the Civil and Constitutional proceedings initiated by the Petitioners, wherein the
Petitioners have not only asked for a sizeable sum of money but also prevented the
Respondent No.2 from finding new contractors. The Respondent No.2 hopes to use the
Respondent No.1 to pressurize the Petitioners into withdrawing those cases and executive
machinery cannot be allowed to be misused so.

C. That the malevolence of the Respondent No.2 is further highlighted by the fact that this
complaint to the Respondent No.1 has come almost a month after the repudiation of the
contract, the Petitioner’s letters to the IG Punjab and the various litigations ensued,
indicating time taken for deliberation and advice so as to best entrap the Petitioners to
make them pay not only for backing out of the contract but to have the audacity to try to
initiate criminal proceedings against government functionaries. The Respondent No.1 has
similarly with malice duly ceded to the incorrigible demands of the Respondent No.2
without even checking to ensure that they were competent to do so.

D. That it is crucial at this juncture to highlight that the matter is essentially civil and
contractual in nature, with the liabilities of both parties to be determined by the Civil
Judge at trial via the appointment of a local commissioner. The Petitioners have a large
sum of Rs.5,950,720,527/- outstanding and should there in fact be issues with a mere 22
piles out of 5000 at Grids No.358 & 359 , the court is likely to adjust the compensation
award to reflect the cost suffered. Therefore, no financial loss has actually been sustained
by the Respondents No.2 & 4, so the appropriate forum cannot possibly be the
Respondent No.1. This in itself is sufficient reason for judicial review of the actions of
the Respondent No.1 to declare it ultra-vires and without cause.
 E. That the Honorable Supreme Court in the landmark case of Shela Zia v Wapda PLD
1994 SC 963 decided that when considering Article 9 of the Constitution of Pakistan
1973 and the right to life, the term life was to be interpreted widely and to include the
enjoyment of life. The Petitioners’ right to life is being severely impacted by the constant
stress, both mental and physical caused by the undue harassment, stigmatization and
persecution of the Respondent No.1 at the best of the Respondents No.2 & 4. The
Petitioner is not even in a mental state to enjoy the every-day comforts of life and is also
unable to concentrate effectively on his work. The violation of such a fundamental right,
that too by a state functionary, is sufficient cause for this Honorable Court to intervene.

F. That the right to Human Dignity is safeguarded by Article 14 of the Constitution of

Pakistan 1973 and this is being blatantly and unashamedly disregarded by the
Respondents No.1, 2 & 4. Repeated calls for inquiry to repeat the same questions and
allegations without showing even the basic shreds of respect and humanity, whilst at the
same time tainting the well-earned reputation of the Petitioners both as human beings and
potential contractors, is not behavior befitting of executive institutions such as the
Respondents No.1, 2 & 4. The dignity of the Petitioners has been made light of with
malice a forethought and this court has been vested with the powers to be the savior of
victims of violation of fundamental rights.

G. That Article 10-A of the Constitution of Pakistan 1973 envisages the right of every
individual of the state to a fair trial, free of any political motivations or ulterior agendas
and it is crucial at this juncture to highlight that the definition of trials includes inquiries
and investigations. An investigation whose very premise is a counterblast to existing
litigation merely to pressurize the Petitioners and its driving force is political pressure on
part of the local government to meet the demands of their voter base, can never be
impartial, just or fair. The inquiry is therefore in constant violation of Article 10-A,
which is a fundamental right of the Petitioners and must not be contravened at any cost.

H. That the Petitioners wish to seek relief against the actions of the Respondent No.1 who
are a body carrying out functions in connection with the affairs of the federation, the
province or a local authority and can be proceeded against under Article 199 of the
Constitution of Pakistan on fulfillment of the requirements of the function test. The
Respondents No.2 & 4, on whose directive these unlawful actions are taking place, are
the very manifestations of the terms local authority and the province, respectively, further
strengthening the case of the Petitioners with regards to maintainability.

I. That there is no alternate remedy available to the Petitioners which is equally efficient or
efficacious, especially considering the clout and influence of the Respondents No.2 & 4,
leaving the Petitioners with no other option but to knock on the just and impartial doors
of this Honorable Court.

J. That the Petitioners seek leave to furnish further grounds at the main hearing of the
instant Writ Petition.

PRAYER

In light of the above, it is most humbly and respectfully prayed;

i. That the inquiry/investigation being conducted by the Respondent No.1

be declared ultra-vires, without jurisdiction and outside the scope of
lawful authority.
 ii. That the Respondent No.1 be prohibited from carrying out any further
inquiry/investigation and be prevented from taking any other coercive
measure against the Petitioners.

iii. That the fundamental rights of the Petitioners to Life, Dignity and a
Fair Trial be upheld, protected and safeguarded against the Respondent
No.1 by this Honorable Court.

iv. That the actions of the Respondent No.1 be recognized as motivated by

mala-fide and therefore this Honorable Court must scupper them at
their infancy.

v. Any other relief which this Honorable Court deems fit and proper may
also be given to the Petitioners.

PETITIONERS

THROUGH

(SALMAN SAFDAR)

Barrister-at-Law

Advocate Supreme Court

CC No._____________

(SYED MUHAMMAD ALI) (SARMAD ALI)

Barrister-at-Law LLM (UK)

Advocate High Court Advocate High Court

Ali & Ghani Law Chambers

(USMAN IQBAL SAHIBZADA)

Advocate
Dated: 12/07/2016

As per the instruction of the clients, and to the best of our knowledge, it is certified that this is
the first Writ Petition filed under Article 199 of the Constitution of Pakistan on the said matter.

Advocate