1. ' KHAWAJA NAVEED AHMED, J.---These Criminal Miscellaneous Applications Nos. 518/97, 39/2000, 109/08 and 115/08 have been moved for quashment of proceedings arising out of F.I.R. No,13 of 1997, F.I.A. Circle, Karachi. Mr. Raza Hashmi, Advocate is appearing in Criminal Miscellaneous Applications Nos. 39/2000, 109/08 and 115/08 while Mr. Suleman Habibullah is appearing in Criminal Miscellaneous Application No,518/99.
2. ' Brief facts of the case are that F.I.A. State Bank Circle, Karachi had registered F.I.R. No,13 of 1997 in respect of alleged offence which had taken place in the year, 1996. Inspector Mushtaq Ahmed Sehto of F.I.A. State Bank Circle, Karachi had lodged F.I.R. Which is reproduced as under:-- "Consequent upon enquiry conducted at F.I.A. Crime Zonal Office, Karachi vide Enquiry No,18/96 regarding procurement of Grate Bars for the Sintering Plant of Pakistan Steel, it revealed that an unnecessary Alarm of Urgency was raised by Dr. Naseem, Incharge Sintering Plant in Feb. 1996 asking for an immediate replacement of 60,000 Grate Bars of Russian Design in the said plant. He demanded the replacement to be completed by April, 1996. Consequently, Heavy Mechanical Complex Texila and Peoples Steel Mills, Karachi, were approached to the effect that they could meet the supply of Grate Bars within the Target date-line. Both the companies declined by adding that the supplies could be completed within a period of six months after receipt of confirmed order.
3. However, accused Usman Farooqui, Exh. Chairman Pakistan Steel Mills hatched a conspiracy in collusion with the accused Moinul Arifin, Director Finance, M.A. Usmani General Manager, Saleem Manager, M. Haroon Khan Director Procurement & Stores, Dr. Muhammad Naseem Deputy General Manager, Taha Saeed General Manager and others to make the purchase of said Grate Bars from open market without flouting any tender on the pretext of emergency at exorbitant rates thus defrauded the Government exchequer of public money to the tune of Rs,5,13,00,000. Further to this accused Mushtaq Rana Chief Executive of Messrs Chiragh Suns Engineering Limited, Karachi was also contacted and was included in the conspiracy. He quoted a rate of Rs,1330 per grate bar as against Rs,495 of peoples steel mills and the same was accepted by the accused persons fraudulently and dishonestly in order to receive pecuniary advantage for themselves for the aforesaid amount and also caused loss to public exchequer for the corresponding amount.
4. 'Although Grate Bars of the said Russian Design were purchased by Pakistan Steel Mills, Karachi previously @ Rs, 495 per g. b., a dummy price of Re.1 was quoted by the indenting unit to hoodwink the system and to ensure that no objection is raised at the time the inflated quotation of Messrs.
5. Chiragh Suns Engineering Ltd. Is opened. Strangely offers of Messrs. Peoples Steel Mills and Messrs Heavy Mechanical Complex Texila were rejected on the plan that they were not meeting the required delivery scheduled of Pakistan Steel, but Messrs. Chiragh Suns Engineering Ltd. Were allowed to complete the supplies in two instalments each of Rs,30,000 bars in six months time, which was subsequently extended. Messrs. Chiragh Suns Engineering Ltd. Was also given a mobilization advance of Rs,2,32,45,200 against insurance Guarantee rather than Bank guarantee just to favour the said suppliers. The Manager Finance Mr. Talib Hussain vide his note dated 21-3- 1996 pointed out all the discrepancies involved in this shady deal, but the Incharge Finance and the Director Finance took no notice of it and the supply order was issued.
6. ' Thus the accused named above being employees of the Pakistan Steel Mills Corporation and employees of Federal Government and as such public servants in the capacity of custodian of the public funds wilfully and deliberately by abusing their official position as such public/Government Servants in active collaboration with accused Rana Mushtaq Chief Executive of Messrs Chiragh Suns Engineering Ltd. Committed the act of criminal breach of trust to the tune of Rs,5,13,00,000 without including interest and related financial factors and . Thus committed the offence punishable under sections 409/109, P.P.C. R/W section-5(2) of PCA-II, 1947. Hence, this case is registered by me under the orders of the competent authority communicated under No, DKZ3265/97, dated 24-12-1997 of Director, F.I.A, Karachi Zone, Karachi and investigation taken up."
7. ' Upon completion of investigation final challan was submitted against all the applicants along with Usman Farooqui, Ex-Chairman, Pakistan Steel Mills. One of the accused Muhammad Haroon Khan had died during the pendency of the trial. The Anti Corruption Court had framed formal charge under sections 409/109/34, P.P.C. Read with section 5 (2) of PCA-II, 1947 against all six accused on 20-11-1999. Accused persons had pleaded not guilty and had claimed trial. Present applicant Dr. Muhammad Naseem and deceased Muhammad Haroon had moved application. Under section 249-A, Cr.P.C. In the trial Court which was rejected on 7-10-1999. Thereafter Dr. Muhammad Naseem approached the Honourable High Court viz criminal miscellaneous application No,518 of 1999 in which the then Honourable Chief Justice was pleased to grant stay order and since then the proceedings are stayed in the trial Court. Mr. Usman Farooqui had approached the Honourable High Court directly in Criminal Miscellaneous Application No,93 of 2008 and proceedings against him were quashed by the then Chief Justice by order dated 9-5-2008. The application of remaining applicants namely Rana Mushtaq Ahmed, Muhammad Saleem and Taha Saeed came for hearing before the High Court on 23-5-2008 and Court was pleased to observe that their application will remain pending in the High Court and in the meantime they will move an application in the trial Court under sections 249-A Cr.P.C./265-K, Cr.P.C. The Stay Order was relaxed for the purpose. The applications were moved in the trial Court which were rejected by the learned Special Judge, Anti-Corruption vide order dated 6-8-2008 as such the present application for quashment is being heard. The learned counsel has mainly drawn my attention towards the reports/letter enclosed with the application, all the letters are to the effect that no case is made out against the applicants and no loss has been caused to Mill by the act of the accused persons. F.I.A.
8. Technical Wing in its review report which appears at page-7 has mentioned as under:-- "As such no abnormality regarding indented/ procured quantity w.r.t. Consumption norm, stock position and quantity in pipeline is observed. As far as purchase procedure is concerned the SIMPLIFIED PROCUREMENT PROCEDURE issued in Feb, 1993, which is in vogue allows purchase department to by-pass normal procurement procedure in case of emergency/urgent procurement. Study reveals that no procedural violation has been committed and no irregularity whatsoever is observed."
9. ' Similarly Deputy Director (Engineering), F.I.A, Karachi Zone has submitted report which is reproduced as under:-- "The procurement procedure in this regard was very simple and clear. It was in the practice since long in Pakistan. Moreover, CSEL was the only firm in market, who could supply this large number of Grate Bars in stipulated time period. This firm accepted the offer of supply to said material within targeted period whereas the other firms like HNC and Peoples Steel Mills did not accept the offer of supplying the same quantity of Grate Bars within given time. So work was awarded to Messrs. CSEL under prescribed rules and procedure."
10. ' On these reports Mr. Liaquat Ali Saleemi, Deputy Director, F.I.A. Has submitted his report which has been annexed as Annexure 'D' to the application. It has further been argued that in purchase of Grate Bars the purchase procedure was strictly followed in purchase of Grate Bars. The purchase procedure has been approved by Board of Director of Pakistan Steel Mills on 14-1-1993. Copy of the same is enclosed with the petition as annexure `E'. All these were produced before the learned trial Judge, while rejecting the application under sections 249/265-K, Cr.P.C. The learned Judge has observed that specific role has been assigned to each of the accused persons and there is sufficient evidence in the hands of prosecution to connect the applicants/accused with the Commission of the crime. Regarding all the letters mentioned above in favour of the accused, the learned trial Court Judge has observed that the same are not the Part of Prosecution file. In my humble opinion if Prosecution has supported material in favour of the accused, it amounts to mala fide and dishonesty on the Part of the Prosecution agency and investigation officer. The accused should not suffer due to omissions and suppressions made by the Prosecution.
11. ' I have heard the learned counsel for the applicant as well as for the State and have perused the entire record. I have perused the order passed by the Federal Review Board, Islamabad. It is signed by Mr. Justice (R) Hamid Ali Mirza, Chairman, Mr. Justice (R) Malik Muhammad Qayyum, Member and Mr. Justice Agha Rafique Ahmed Khan, Member. The order is reproduced as under:-- "ORDER. We have thoroughly examined the matter and carefully gone through the record of the case in hand. On the basis of material available before us, the Committee is of the view that this case was registered falsely due to political reasons against the petitioner, therefore, following the provisions contained in section 494, Cr.P.C. We recommend the withdrawal of the case F.I.R. No,13 of 1997 registered at police station F.I.A. State Bank Circle, Karachi on 26-12-1997 against the petitioner by extending him benefit of section 494 (2), Cr.P.C."
12. 'The learned defence counsel has produced the record showing letter dated 20-5-1998 written by Mr. S.M. Khalid Director A & P. In which it is mentioned that name of Muhammad Saleem be deleted from the F.I.R. No,13 of 1997 based on the finding of Inquiry Officer. Another letter dated 20th August 1998 by Mr. Abu Shamim Arif, Secretary Industries/ Chairman Pakistan Steel Mills. It is mentioned that captain M. Haroon Khan, Taha Saeed, Dr. Muhammad Naseem and Muhammad Saleem are not responsible for any criminal breach of trust. It has further been mentioned that they are to be exonerated from the allegations against them. This letter is signed by Mr. Abu Shamim Arif. It is mentioned that "on the basis of inquiry it has been established that the above named four officers Captain M. Haroon Khan, Mr. Taha Saeed, Dr. Muhammad Naseem and Muhammad Saleem Officers cannot be held responsible for any criminal breach of trust as such they are to be exonerated from the allegations against them. Similarly letters written by Prosecution Branch are also on record, which shows that the applicants are innocent. The learned State counsel has opposed the quashment proceedings stating that the prosecution may be given chance to produce witnesses before the Court.
13. I have heard both the counsel and perused the record and all the annexures. This incident had taken place in the year 1996. One accused had died in custody during pendency of the case.
14. Another accused Usman Farooqui was acquitted by the High Court in quashment proceedings. It is being categorically stated that the Steel Mills has not suffered any loss on account A of act done by the present applicant. Applicants are being dragged in proceedings for last 12 years. There is also recommendation of withdrawal of case under N.R.O. In the circumstances in my humble opinion proceedings of the matter in the trial Court will be an exercise in futility as there is no chance of conviction of accused persons.
15. This Court is conscious of the fact that proceedings under section 561-A, Cr.P.C. Neither provide additional nor alternate remedy. High Court cannot assume function of trial Court but in B appropriate cases in order to avoid the abuse of process of Court the High Court in exercise of its power under section 561-A, Cr.P.C. Can quash the proceedings. Reliance is placed on:--
(i) PLD 1997 SC page 275 (Muhammad Khalid Mukhtar v. The State)
(ii) PLD 1996 Karachi Page 144 (Mehboob Alam v. The State)
(iii) 1993 PCr.LJ 125 (Manzar Iqbal v. The State).
(iv) 1993 SCMR Page 523 (Kashif Ali Bhutto v. The State).
(v) 1994 SCMR Page 798 (Asif Ali Zardari v. The State).
(vi) PLD 1967 SC 354 (Raja Nawaz v. Muhammad Afzal).
(vii) 1968 SCMR Page 380 (Gian Chund v. The State).
16. Keeping in view the facts and circumstances of the case and case law mentioned above I am clear in my mind that applicants have made out a case that there is no probability of conviction of the applicants for any offence, continuance of Criminal Case against the applicants will amount to abuse of the Process of Court and quashment of the case will secure the ends of justice.
17. Consequently all the four criminal miscellaneous applications are allowed. The proceedings against accused are quashed. Their bail bonds are cancelled and sureties are discharged.