1. ' MRS.QAISER IQBAL, J.---The facts and circumstances leading to the bail applications are almost similar in nature with some variation in C.P. No,D-1231/2007, both bail applications were argued together by the learned counsel for the parties and are disposed of by this common order.
2. ' Succinctly stated the relevant facts in C.P. No, D-1231/2007 are that respondent No,1 on 1st June, 2007 filed a reference No,26/2007 under section 18(a) read with section 24(b) of National Accountability Ordinance 1999 against petitioner Darayus C. (Happy) Minwalla, Muhammad Rasheed Hassan s/o Ahmed Hassan Director Corporate Planning PIAC and Pervaiz Hussain s/o A.R.
3. Sardar Hussain (a private citizen and businessman) who had expired during the pendency of the petition before the Administrative Judge, Accountability Courts Karachi Sindh, subsequently transferred to the Court of respondent No,4 pending adjudication therein.
4. ' Allegation set forth in the reference are that in January 1998 the Pakistan International Airline (PIA) decided to replace its aging fleet of aircraft, a committee was formed to induct new aircraft. M/s. Cathay Pacific offered their six B-747-300 aircraft to PIA on lease for a period of ten years. On the basis of information received from Jersey police that PIA had sustained losses as a result of business transaction with M/s. Cathay Pacific, investigation was conducted revealed that Management of PIA after approval of the Board of Directors acquired aircraft on lease executed an agreement of lease on 18th March, 1999 with Cathay Pacific for five aircrafts bearing serial numbers 23221, 23392, 23534, 23709 and 23920 for a period of two years with rental of US$0.275 million per aircraft per month. Maintenance and Support Agreement (MSA) was also made @ US$ 1510 per flying hour. Petitioner Rashid Hassan as r team leader, visited Hong Kong on 14th February, 1999 to carry out the evaluation of the aircraft offered by Cathay Pacific on lease. On such presentation to the meeting of the Board of Directors approval to acquire five used aircrafts from Cathay Pacific were acquired on two years lease as interim arrangement. It is averred that the maintenance and support agreements were also executed between PIA and Cathay Pacific at an exhorbitant rate of US$ 1510 per flying hour. The aircrafts were fitted with Rolls Royce engine which were totally new to PIA only the manufacturers had expertise. On 26-4-2001 PIA extended the lease agreement of five aircrafts for another five years for US$ 09225 million per aircraft per month. Fleet Hour Agreement
(FHA) was also made on the basis of the recommendation of the Board of Directors on 23rd April 2002 PIA decided to purchase six B-747-300 aircrafts from Cathay Pacific instead of five, six aircrafts B-747-300 purchased in a sum of US$ 7 million in 2002 was parked in desert since early 2000 and had no market value. It is alleged that the petitioner Darayus C. (Happy) Minwalla general sales agent of Cathay Pacific since 1971, was not an employee, due to his mala fide intention Cathay Pacific signed an employment with him in April 1999 with a monthly salary of US$ 3834 , it was agreed that his retirement benefits would be calculated as if he had ' joined Cathay Pacific in September 1971, re-designated as Country Manager, was retired with a gratuity payment of US$ 117,575 thereby Cathay Pacific entered into various agreements with DM Investment and Aviation International Consultants Limited owned by him thus received US$10.5 million from Cathay Pacific from the year 1999 to 2003. Petitioner Muhammad Rashid Hassan being General Manager, Fleet Planning played a pivotal role in connivance with co-accused, received US$195000 during mid of the year 2002, as a intermediary arrangement. The DM Investment S.A. Account No,3 was opened in Standard Chartered Bank on 20th August 2003 sum of US$50,000 was paid from the DM Investment account. The reference in Para (16) concluded as under:-- ' That evidence collected during investigation establishes that accused No,2 with the abetement of accused No,1 or in conspiracy with him misused his authority as General Manager PIA to gain benefit for himself and accused No,1 and wilfully failed to exercise his authority to prevent the grant of undue benefit which he could have prevented by exercising his authority. The accused No,2 received an illegal gratification of US$ 1,95,000 in May/July 2002 and US$ 150000 in August 2003.
5. Accused No,3 was also privy to the offence and he also received an amount of US$ 525000 from accused No,
1. Thus accused in connivance with each other by corrupt, dishonest or illegal means obtained for themselves pecuniary advantage. The accused have thereby committed the offence of corruption and corrupt practices as defined in clauses (i), (ii), (iv) & (vii) of section 9(a) punishable under section 10(a) of National Accountability Ordinance 1999 and schedule thereto".
6. ' Mr. Abdul Hafeez Pirzada learned counsel for petitioner has contended that on the basis of suo motu action by the respondents on the basis of information received from Jersey police arising out of dispute with his wife Meher Rohinton Minwalla on the basis of a judgment passed by London Court the wife had sought enforcement of English judgment passed by Singer J, the issue with regard to the share of petitioner Minwalla in DM Investment S.A. Besides other issues were taken into consideration, Islamic Republic of Pakistan was also arranged as a party respondents fully participated in the proceedings. Issues directly and substantially involved in the petition were conclusively decided that there was no evidence or that PIA had complaint to any one nor the chief officer had produced any evidence of actual prejudice to PIA on the balance of probability no offence of fraud was committed to PIA, proceedings emanating from the disputed transaction in Pakistan would amount to double jeopardy, NAB has participated in the proceedings from the year, 2005. Petitioner categorically rejects the allegation of bribe or kickbacks are equally false based on conjectures and surmises. The agreement was executed between the Cathay Pacific and PIA therefore the conception of deception, concealment and failure to act diligently are not attracted.
7. Foreign Court had held that the payments made by the Cathay Pacific to DM Investment Limited do not represent proceeds of any criminal activity and payments made by Cathay to DM Investment had commercial relationship with Cathay since 1985. In any event, a claim of civil nature cannot be attributed to criminality. It is next urged that reference itself suggests that on account of contractual liability only remedy available is by way of filing a civil suit. PIA is not willing to file a suit against all involved in the case. It emerges from the investigation report that in lieu of contractual obligation no fraud has been committed. Petitioner had not evaded the investigation and trial, come from abroad he came to Pakistan on 14th August 2007 arrested at Quaid-e-Azam International Airport. The allegation of abetment and forming conspiracy with co-accused are not borne out. It is next urged that petitioner is 61 years old chronic patient of heart ailment as well as diabetes. In support of the above contentions reliance is placed on the case of Haji Abdul Razzak and another v. The State and others unreported case in C.Ps. Nos.12 & 13/2003, Baig Muhammad v.
8. Chairman NAB (2002 MLD 703), Brigadier (R) Aslam Hayat Qureshi v. The State (2002 MLD 695). It is stressed that case against the petitioner requires further inquiry as the investigation is over and the petitioner was no more required for investigation.
9. ' Mr. Mehmood A. Qureshi learned counsel appearing for petitioner Muhammad Rashid Hassan had contended that he has no nexus with the transaction nor was number of the Board of Directors of PIA in connection with acquiring aircrafts on lease from Cathay Pacific until attended a meeting on 8-2-1999 and had apprized that PIA will have to incur Rs,50 Crore in the higher purchase operation of the aircrafts. On several occasions meeting of the board were deferred so much so a high power committee was formed by Government of Pakistan to finalize the task. The role of the petitioner has come to an end on 25 July 2001 when he was transferred to other department. It is next urged that the alleged contention before the police officers and in shape of voluntarily return in terms of section 25 of Ordinance 1999 are inadmissible in evidence as the petitioner was pressurized and under duress compelled to file an application for return. It is next urged that no documentary evidence is available to suggest that the petitioner had any account in Standard Chartered Bank where the money has flown from the account of D.M. Investment S.A. On two occasions. It is next urged that the petitioner is a sick, old man and is involved in a case of no evidence therefore he deserves to be admitted on pre-arrest bail.
10. ' Mr. Shafat Nabi Khan Sherwani learned DPG, NAB contended that the petitioners are involved in white collar crime had received 4% commission. Both of them has abetted to each other aided in connived to cause colossal loss to the exchequer of PIA. The judgment of the foreign Court does not pertain to the issue involved in the reference therefore the petitioners are not entitled to the benefits of double jeopardy. He emphatically contended that petitioner Muhammad Rashid Hassan had received commission on two occasions from the front man and what cannot be done directly were carried out indirectly to circumvent the events malafidely. To rebut the judgment of foreign origin it is contended that the issues involved in the reference were not directly or substantially adjudicated upon by the foreign Court as sufficient evidence is available to connect the petitioners in the commission of the crime which manifestly suggest that a substantial sum Was transferred from the account of one petitioner to the account of other petitioner which suggests collaboration, connivance, in commission of the crime.
11. ' We have considered the arguments advance at bar and pursed the record of the case.
12. ' After careful consideration of the contention raised by both the learned counsel, we are of the view that the judgment passed by Royal Court of State of Jersey have relevancy for determination of controversy in Pakistan relating to same transaction conclusively determined, directly adjudicated between the relevant parties.
13. Investigation report suggests ahnut contractual obligation between accused, Cathay Pacific vice verse PIA it can be determined in civil jurisdiction in a suit of recovery to be filed by PIA against petitioners.
14. ' On the tentative assessm ent it appears that the transaction of acquiring aircraft on lease from Cathay Pacific was after unanimous approval of Board of Directors of PIA and High Powered Committee confirmed by Government of Pakistan. Respondent has participated in the proceedings of foreign Court since 2005 however reference was filed on 1-6-2007 whereas judgment was announced by Royal Court of Jersey on 13 July, 2007. Prima facie no direct evidence is available to suggest that the petitioner is involved in commission except one fact, came in existence after four years of the transaction requires adjudication at trial. More importantly the record of Standard Chartered Bank have not been seized for alleged commission money passed on from the account of one petitioner to the other.
15. ' Underline objections of the Ordinance as highlighted by the learned Prosecutor to provide effective measures for the detection, investigation, prosecution and speedy disposal of the case involving corruption, corrupt practices, misuse/abuse of power, misappropriation of the property, kickbacks, commissions and for matter connected and ancillary or accidental thereto but the Courts have Mherent powers to provide remedy where there is a wrong as is held in the case of Anwar Saifullah v. The State and 4 others (PLD 2000 Lahore 564) and Asif Ali Zardari v. The State (1993 PCr.LJ Karachi 781).
16. ' Adverting to the plea of bail on the medical ground it appears that petitioner is above 60 years of age, old chronic patient of heart ailment. And diabetes, mellitus too. The perusal of record reveals that petitioner Darayus C. (Happy) Minwalla was under treatment since March 22, 2004 even a Medical Board was constituted opined that he is a known case of coronary artery disease, and had 3 stents P.C.I. Done in USA, thereby Board had recommended for coronary Angiogram.
17. ' Petitioner Muhammad Rashid Hassan had undergone Electro physiology in the Aga Khan University Hospital permanent pacemaker implanted and is also diabetic which suggest that the petitioner's detention in jail or even here stay in Hospital may result in their collapse at any time.
18. They require immediate treatment, hospitalization, close monitoring doctor supervised in a well- equipped hospital. This view finds support from the case of Sanaullah Babar v. The State and 2 others (PLD 2003 Peshawar 175).
19. ' Having considered the case from all angles we are of the opinion that the petitioner Darayus C.
20. (Happy) Minwalla is entitled to the concession of bail on medical ground. The petitioner is directed to be released on bail on furnishing solvent surety in the sum of Rs,10 million with two sureties each in the like amount to the satisfaction of the trial IF Court, ' SO far as the case of petitioner Muhammad Rashid Hassan is concerned the allegation against him are based upon documentary evidence which requires deep scrutiny at trial coupled with medical ground; is entitled to the pre-arrest bail which is hereby confirmed in terms of interim pre- arrest on 6-6-2007.
21. ' However, above observations are tentative in nature which shall not effect the final disposal of the case-on merits.
22. ' Consequently both the petitions stands allowed in above terms.