1. ' MUHAMMAD TASNIM, J.---The applicant is facing trial before the Court of Special Judge (Central- II), Karachi in Crime No,01 of 2010, registered at Police Station FIA, Crime Circle, Karachi, under sections 406, 409, 420, 468, 471, 477A and 109/34, P.P.C. 'read with section 5(2), Prevention of Corruption Act, 1947.
2. ' The brief facts as set out in the FIR are that consequent upon Enquiry No,95 of 2009 of FIA, Crime Circle; Karachi, It has been established that Pakistan Steel has awarded canteen contract of its nineteen (19) canteens for the year 2007-2008 with a total subsidy of Rs,3,57,67,900/- to various contractors. The bill of quantity was estimated for 7080 employees. While estimating the similar award for the year 2008-2009 it was estimated at Rs,4,62,59,827/- with an increase of 30% owing to the price hike in the commodities. The tender was floated for the estimated cost of Rs,4,62,49,827/- but, in the meantime, CBA entered into the matter and, thereafter, a meeting was held on 12-9- 2008 wherein the tender cost of Rs,4,62,49,827/- was increased to Rs,12,72,91,007/- and the tender already floated were scraped and new tender for Rs,12,72,91,007/- was floated causing loss to Pakistan Steel to Rs,8,10,41,180/-. On the aforesaid charge FIR No,1 of 2010 was registered as aforesaid. Interim challan has been submitted before the learned trial Court. The present applicant/ accused filed bail application before the learned trial Judge who after hearing the parties rejected the same vide his order dated 3-3-2010 and against the aforesaid order present bail application has been made.
3. ' Syed Mahmood Alam Rizvi, learned counsel for the applicant, has submitted that applicant had acted honestly in discharge of his official functions and further acted in the interest of Pakistan Steel Mills (hereinafter called the organization) and its employees. The tender earlier floated, no doubt, was recalled in the meeting in which the present applicant participated and decision with regard to floating of fresh tender was taken in such meeting. As per learned counsel for applicant it is not clear from the meeting dated 12th September 2008 that cost of tender had gone up from 4,62,49,827/- to Rs,12,72,91,007/-. Learned counsel for the applicant has further argued in support of his bail application that earlier tenders were scraped and new tenders were ordered to be floated as menu was changed on the intervention of CBA Union. He further submitted that all tenderers were afforded equal opportunity to take part in new tenders. Learned counsel for the applicant has invited my attention to letter dated 12th September, 2008 which relates to meeting dated 12th September 2008. Learned counsel for the applicant has further argued that Engineering Contract Department was responsible for bill of quantity. He further submitted that Food Committee was responsible for the meal standard. Learned counsel for the applicant has also stated that IR Department was responsible for fixing the food rate. He argued that tenders were opened by Tender Committee and Technical Committee had evaluated the bidders qualification. Learned counsel also argued that Commercial Committee evaluated the cost. Learned counsel for the applicant has narrated the above facts just to show that applicant was not a member of any of the Committees mentioned hereinabove, hence applicant is not connected with the charge earned counsel has further submitted that Finance Department had made payments on the basis of subsequent tenders with which the present applicant is not connected at all. He has argued that no doubt the meeting of 12th September, 2008 was headed by the applicant but the same was not convened on his orders. Learned counsel further argued that charges mentioned in the FIR are not proved from the reading of the present record. Learned counsel has taken me to the statements recorded under section 161 Cr.P.C. Of Muhammad Iqbal, Rahim Bux, Pervaiz Masood, Abdul Karim, Muhammad Akram, Muhammad Suleman and Javed Iqbal and has argued that none of the aforesaid witnesses have involved the applicant with the commission of crime. Learned counsel has further submitted that applicant is an honest person and is a retired Army Officer and he has not caused any financial loss to the organization. Learned counsel for the applicant has submitted that this Court has already granted bail to one co-accused Muhammad Farooq in Criminal Bail Application No,135 of 2010 per order dated 15th March 2010 and submitted that following the rule of consistency the present applicant may also be extended the same relief and be admitted to bail as applicant in Crriminal Bail Application No,135 of 2010. Learned counsel for the applicant has also placed on record a number of documents during the course of arguments which were taken on record with the consent of learned Standing Counsel, copies whereof were also supplied to the learned Standing Counsel. Those documents contained the certificates and awards issued to the present applicant for rendering active service in Pakistan Army. Learned counsel for the applicant tried to convince the Court by producing such documents to show that the present applicant had unblemished record throughout his service. In the end learned counsel for the applicant has prayed for grant of bail to the applicant. Learned counsel for the applicant in support of his above submissions has relied upon the following case law:--
(1) Haji Muhammad Nazir and others v. The State 2008 SCMR 807.
(2) Muzaffar Ayaz Abid Baloch v. National Accountability Bureau, Sindh 2008 SCMR 1316.
(3) Muzammil Niazi and others v. The State PLD 2003 Kar.
4. 526.
(4) In the case of Zulfiqar Ali Ibrahim C.P. No,D-2483 of 2007.
(5) Muhammad Hussain Kakar and another v. The State PLD 1999 Quetta 95.
(6) Akhtar Hassan Ansari v. The State 2003 PCr.LJ 473.
(7) Cr. B.A. No,295 of 2002 (Abdul Rahim Samoo v. The State.
(8) Jamil A. Durrani v. The State PLD 2003 Kar.
5. 393.
(9) Dr. Allah Nawaz A. Qazi v. The State 2008 SCMR 196.
(10) Abdul Qadir v. Federation of Pakistan and others 2002 SCMR 1478.
(11) Ramzan and others v. The State 2008 YLR 2086.
(12) Saeed Ahmed v. The State 1996 SCMR 1132.
(13) Abdul Wahid Bandkukda and others v. The State 2008 YLR 767.
(14) Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and others 1994 SCMR 932.
(15) Gulberg and others v. The State PLD 1964 (WP) Kar.
6. 275.
(16) Ghulam Qadir and others v. The State 2008 SCMR 1221.
(17) Anwar Saifullah Khan v. The State and others 2001 SCMR 1040.
(18) Sajjad Ahmed v. Chairman, National Accountability Bureau and others 2008 YLR 2686.
(19) Muhammad Daud and another v. The State and another 2008 SCMR 173.
(20) Aftab Ahmed Khan Sherpao, Ex-Chief Minister of N.-W.F.P. The State PLD 2001 Pesh.
7. 80.
8. ' As against the above, Mr. Shahab Sarki, learned Standing Counsel, has submitted that deeper appreciation of evidence cannot be undertaken at the bail stage. Learned Standing Counsel has stated that the applicant had headed the meeting of 12th September, 2008 wherein it was decided in principle that earlier tenders for the value of Rs,4,62,49,827/- was scraped and new tenders that changed menu were ordered to be floated enhancing the value to Rs, 12,72,91,007/- which has caused the financial loss to the organization. Learned Standing Counsel has submitted that any reference to documents which are prior to 12th September, 2008 is of no consequence as principle decision with regard to scraping of existing tenders and floating of new tenders were taken in the meeting dated 12th September, 2008 which was headed by the present applicant. Learned Standing Counsel has further submitted that vide note 49 of the note portion which appears at page 151 of the instant file that present applicant has submitted the entire action taken by different Committees in pursuance to decision taken in meeting dated 12th September, 2008 under his own signature on 26th September, 2008 to the competent authority for approval of the same. Learned Standing Counsel has submitted that applicant has not acted bona fide but was instrumental in causing loss to the organization deliberately. Learned Standing Counsel has also submitted that tenders which were to be opened on 16th, 17th and 18th September, 2008 had already 30% increased than the earlier tenders hence there was no justification to scrap those tenders and order for fresh tenders which has caused serious financial loss to the organization. Learned Standing Counsel has invited my attention to the order passed by me on 29th March, 2010 in Criminal Bail Application No,273 of 2010 (Muhammad Atique Khan v. The State) and submits that the applicant in that bail application was also associated in the meeting dated 12th September 2008 and was instrumental in taking the decision in principle which has caused serious financial loss to the organization. Since the present applicant is similarly placed with the applicant in Criminal Bail Application No,273 of 2010 the order dated 29th March, 2010 be followed in this case and the bail application of present applicant be dismissed following the rule of consistency.
9. ' I have heard the learned counsel for the parties, gone through the record and the documents filed by the learned counsel for the applicant during the course of arguments and also gone through the case law cited by the learned counsel for the applicant in support of his contention.
10. ' From the perusal of record it is clear that the present applicant had taken part in meeting dated 12th September, 2008 wherein decision in principle was taken with regard to scraping of tenders already floated which were to be opened on 16th, 17th and 18th September, 2008 respectively. In the meeting dated 12th September, 2008 such tenders were recalled and fresh tenders for new date i,e, 23-9-2009 were decided with revised, menu which enhanced the cost of tenders from Rs,4,62,49,827/- to Rs,12,72,91,007/-. The learned counsel for applicant has invited my attention to the document dated 12th September, 2008 which relates to meeting dated 12th September, 2008.
11. Perusal whereof shows that applicant had headed the meeting along with other officials of organization on the one side and the representative of CBA Union on the other side. Such meeting was also attended by number of contractors who were interested in such tenders. It further reveals that in such meeting it was decided that recipe may be completely removed, assessment criteria be revised, and clause 5 whereof be omitted. It was further decided that reserved price be fixed in consultation with representative of ECD&IR, such letter further shows that offers of bidders were ordered to be opened on 23rd September 2008 and evaluated. It further reveals that tenders already floated were ordered to be scraped and fresh approval of fresh tender was ordered to be accorded.
12. ' It is settled law that bail application is to be decided on tentative assessment only and not by a deeper appreciation of the facts or law. No doubt, an accused person is entitled to the benefit of doubt at the bail stage also but doubt should be seen to exist on a cursory reading of the evidence or law which can be discerned by a tentative assessment of the material on record. It has been the consistent view of the Superior Courts that submission of the counsel for applicant if travels beyond the scope of tentative assessment and require deeper appreciation of evidence such act is neither permissible nor desirable at the bail stage.
13. ' Applying the above rule to the present case the request of learned counsel for the applicant to appreciate the documentary evidence on record which has been placed by him during the course of arguments cannot be acceded to at the bail stage.
14. ' Considering the case of applicant Muhammad Atique Khan in Criminal Bail Application No,27 of 2010 who was a co-accused in the FIR alongwith the present applicant. Such co-accused had also taken part in the meeting of 12th September, 2008 and I have already dismissed the bail application of co-accused Muhammad Atique Khan on 29th March, 2010.
15. ' Learned counsel for the applicant has also invited my attention to the bail order passed by me in Criminal Bail Application No,135 of 2010 and has prayed for following the rule of consistency and has further prayed that the present applicant may also be admitted to bail. The facts of the case in Criminal Bail Application No,135 of 2010 are distinguishable to the facts of present case. The applicant in Criminal Bail Application No,135 of 2010 had neither participated in the meeting dated 12th September, 2008 nor was a member of Tender Committee, Technical Committee, Commercial Committee or any other Committee which dealt with tenders in dispute, hence this Court found the applicant in Criminal Bail Application No,135 of 2010 not connected with the charge and concession of bail was granted to him. As stated above, the present applicant had headed the meeting dated 12th September, 2008 wherein the decision with regard to scraping of earlier tenders and ordering for fresh tenders enhancing the amount from Rs,4,62,49,827/- to Rs,12,72,91,007/- was, taken.
16. ' In addition to above, a perusal of statements under section 161 Cr.P.C. Of PerVaiz Masood, Abdul Karim, Muhammad Akram, Muhammad Suleman and Javed Iqbal clearly show that they have in an unequivocal term implicated the present applicant with the commission of crime. The present applicant is not similarly placed as that of applicant Muhammad Farooq in Criminal Bail Application No,135 of 2010, therefore same relief cannot be granted to him. The judgments cited by the learned counsel for the applicant deal with rule of consistency, not being the beneficiary lack of mensrea, adopting the policy of pick and choose and citing certain persons as witnesses rather the accused and further the accomplice is not a good witness and benefit of doubt is to be extended to the applicant. I have examined all the case law cited by the learned counsel for applicant and am of the view that all the judgments are distinguishable on facts and are not applicable in the circumstances of the case. These judgments/orders can be taken note of once the evidence of the parties is recorded.
17. ' With regard to submission of learned Standing Counsel whereby he had invited my attention to order dated 29th March, 2010 passed in Criminal Bail Application No,273 of 2010 (Muhammad Atique Khan v. The State) and prayed that since the above named applicant had taken part in the meeting dated 12th September, 2008 and was instrumental in the entire transaction, hence bail was rightly denied by this Court. The learned Standing Counsel has asked the Court to follow the rule of consistency and dismiss this bail application as the present applicant was also part of aforesaid meeting and was instrumental in the entire transaction.
18. In view of the above, I find no merits in this bail application which is accordingly dismissed.
19. However, it may be clarified that the observations made hereinabove are tentative in nature and the learned trial Court, while deciding the case on merits, shall not be prejudiced by the same.