ORDER MUHAMMAD ATHER SAEED, J.---These three Criminal Bail Applications have been filed against the common order of the Special Judge Anti-corruption and Immigration (Central-1)
Karachi dated 22-12-2010 in case No.16 of 2010 relating to common F.I.R. No.12 of 2010 registered with Police Station F.I.A. AHTC, Karachi for offences under sections 409/109/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act-II, 1947, whereby the bail applications moved by the applicants were dismissed.
2. The first bail application that is Criminal Bail Application No.1413 of 2010 was fixed for hearing on 30th December, 2010 when after hearing both the learned counsel I had by my short order delivered in Court admitted the applicant to bail on furnishing solvent surety in the sum of Rs.1.00 million and P.R. Bond in the like amount to the satisfaction of the trial Court. The second bail application that is Criminal Bail Application No.1434 of 2010 was fixed on 31st December, 2010 and was adjourned to 1st January, 2011 whereas the third bail application that is Criminal Bail Application No.1 of 2011 was fixed by filing an urgent application on 1st January, 2011 and these two bail applications were heard and allowed on the rule of consistency for reasons to follow on the same terms and conditions as the first bail applications.
3. By this order I am reducing in writing the reasons for allowing the above bail applications.
4. Brief facts of the case as per the (C) Misappropriation/Embezzlement of F.I.R. Are that all the three applicants are imported wheat.
Chief Executives/Senior Officers of different companies carrying on the business of pre-shipment inspection duly licensed by the Pakistan Standard Institute, Government of Pakistan and accredited with the International Standard Bureau and registered with various statutory bodies/ authorities in Pakistan and are associate of Foreign/International Inspection Agencies. The Trading Corporation of Pakistan had floated tenders for import of wheat during the year 2008-2009 and had engaged services of the companies in which the applicants are Chief Executives/Senior Officers for carrying on pre-shipment inspection of the consignment of wheat at the different ports of embarkation and the foreign associates of these companies had carried on inspection at various ports of embarkation and had furnished pre-shipment inspection certificates certifying the consignment of wheat to be of standard quality. However, when the consignment reached Pakistan there were allegations of involvement of TCP Officers/Officials into corruption and corrupt practice in connivance with private persons for the purchase/import of wheat for the following reasons:--
(A) Purchase of wheat r on higher/ exorbitant rates, causing huge losses to the Government exchequers.
(B) Import/acceptance of inferior/low quality of wheat and in contravention of specification to cause loss to TCP and to benefit suppliers and themselves by abusing their official position as such public servants.
And therefore an enquiry was conducted and during enquiry as alleged in the F.I.R. It was prima facie established that the TCP officials in connivance with Pre-shipment Inspectors, foreign suppliers and the concerned Surveyors dishonestly imported/ accepted the inferior quality feed grade wheat and that too on exorbitant rates compared to prevailing market rates and thereby caused financial loss to the government exchequer and committed criminal breach of trust and criminal misconduct and rendered themselves liable for punishment under Pakistan Penal Code and Prevention of Corruption Act-II, 1947.
5. It has further been alleged that during the enquiry the wheat was also tested by the PCSIR and according to the report from PCSIR the wheat was not of the quality and grade which had been specified in the tender and according to the specification it was inspected at the pre-shipment stage and certificates were issued by the applicants' companies certifying that it pertains to the specifications mentioned in the tender.
6. I have heard Mr. Kh.' Shamsul Islam the learned counsel for the applicant in the first bail application, Mr. S. Mahmood Alam Rizvi the learned counsel for the applicant in the second bail application and Mr. Rasheed A. Razvi assisted by Mr. Nisar Ahmed Tarar, the learned counsel for the applicant in the third bail application and Mr. Rizwan Ahmed Dodani the learned standing counsel who was appearing for the Federal Investigation Agency (FIA) and who had graciously waived notice for the hearing of the third bail application assisted by the Investigating Officer of the case.
7. Mr. Kh. Shamsul Islam the learned counsel for the applicant in the first bail application argued that the applicant is the Director Agricultural of SGS Ltd. And he had in his capacity as the Director Agriculture entered into an agreement dated 16-6-2009 for performance of pre-shipment inspection of the consignment of wheat. He submitted that the company SGS is an international company and these pre-shipment inspection certificates were issued by its associate company in Netherlands who had conducted the inspection in accordance with the tender documents and on the basis of laboratory reports at the port of embarkation i.e. a port in Netherlands and these goods were received in Pakistan where due to reason not known to him they were again tested at the PCSIR Laboratory who allegedly reported some deficiency in the quality of wheat including its protein contents and on the basis of this report the F.I.R. Was lodged on 12-11-2010 that is almost two years after the pre-shipment inspection was carried on at the port of embarkation and certificates were issued and the goods reached the Karachi Port. He further submitted that although his name has been mentioned at Serial No.10 of the F.I.R. But no specific also has been assigned to him and no allegation has been made that he had received any benefit for allegedly carrying on the pre-shipment inspection and furnishing a certificate with ulterior motives in accordance with the directions issued to him by the TCP Officials. He further submitted that the mala fide of the prosecuting authorities can be gauged from the fact that despite the fact that allegedly the wheat was found to be of inferior quality and not of the grade ordered and was also declared not fit for human consumption it was sold in the open market for consumption by the consumers. Although the learned counsel also contested the fact that his company was an accredited agency and had prepared the pre-shipment inspection certificate on the basis of the lab tests conducted by laboratories which specialize in the examination of food stuff including wheat and therefore the certificates were based on such reports but the same certificates are now being questioned because of examination carried by PSCIR which is neither an accredited laboratory for such examination nor does it possess the necessary facilities for carrying out these examinations. Without prejudice to his above arguments he reiterated his above arguments .That neither any specific role has been assigned to him nor it has been alleged that he received any benefit and that the allegation that he had connived with the TCP officials to cause loss to the national exchequers requires further enquiry. He argued that he had been charged under section 409, P.P.C. And section 5(2) of the Prevention of Corruption Act-II, 1947 and both of these statutes do not apply to him as section 409, P.P.C. Applies to criminal breach of trust by public servant or by bankers, merchant or agent who has been entrusted with property or with any dominion over property in his above capacities and commits criminal breach of trust in respect of that property.
He submitted that he falls in none of these capacities as he was just performing services in the capacity of technical expert and no property was either entrusted to him or given under his dominion. He further submits that section 5(2) of the Prevention of Corruption Act-II, 1947 only applies to public servants. The learned counsel then referred to the impugned order and submitted that the learned Special Judge Anti-Corruption and Immigration disposed of the bail application in one paragraph of twelve lines and that also by assuming an incorrect fact that it is an admitted fact that the applicant is a pre-shipment inspector having the responsibility of inspecting the wheat quality of arrival at the destination port whereas the perusal of the agreement and the allegations made in the F.I.R. Reveals that the actual fact is that the pre-shipment inspection has been carried out at the port of embarkation by the foreign associate of the applicant's company and not at the port of destination. He further submitted that the learned Judge has himself held that the points raised by the defence counsel can only be determined after recording the evidence which implies a candid admission that a further enquiry is needed in this case. He submitted that the above bail order is a sketchy and nonspeaking order and cannot be sustained. In support of his above arguments he relied on the following judgments:--
(1) Khadim Hussain v. The State (2010 YLR 2919)
(2) Saeed Ahmed v. The State (1996 SCMR 1132)
(3) Muhammad Iqbal v. The State (2003 YLR 2346)
(4) Raza Muhammad Sial v. The State (1988 SCMR 1223)
(5) Adil Faheem Rizvi v. The State (2004 MLD 1940)
(6) Wajid Ali v. The State (2000 MLD 1572)
8. Although the other two bail applications were allowed on the rule of consistency since I already allowed the bail application in Criminal Bail Application No.1413 of 2010 and the other applicants were also nominated in the same F.I.R. And their bail application has been dismissed by the same common order but since Mr. Rasheed A. Razvi and Mr. S. Mahmood Alam Rizvi had also argued on the merits of the case therefore I consider it appropriate to record their arguments also.
9. Mr. Rasheed A. Razvi the learned counsel for the applicant in Criminal Bail Application No.1 of 2011 after adopting the arguments of Mr. Kh. Shamsul Islam stated that he was the Chief Executive of Uniteam (Pvt.) Ltd. Which was a company which undertook pre-shipment inspection. His company entered into an agreement with TCP and their associate Geo-Chem Far East Pvt. Ltd. Carried on pre-shipment inspection of vessel carrying 25000 metric tons (+-10%) wheat supplied by Messrs Zao Vitalimar Agro, Moscow, Russia strictly in accordance with the terms and conditions of the tender documents and agreement between the parties and collected samples of wheat and got the same approved by Gafta approved lab M/s. Bontras Ltd. Russia and furnished the report to TCP.
He further submitted that in accordance with tender documents and the agreement between the TCP and the pre-shipment inspector the lab test reports were to be considered final and binding on the buyer and seller. This wheat inspected by them was accepted by the TCP without any objection and the payment was made and the performance guarantee was discharged and the wheat imported has been consumed. However, after registration of the F.I.R. Almost two years after the period of the incident the applicant was arrested and bail application which was filed by him had been dismissed by the impugned order. The learned counsel went on to submit that the applicant's company had dutifully carried out its obligation under the agreement. He further submitted that the only reason for which the wheat was declared to be substandard was that according to the report of PCSIR the wheat contained 9.5 percent protein against the specification of 10% percent and the entire prosecution case rests on this PCSIR Laboratory report which according to him is not an accredited laboratory for carrying on comprehensive examination of quality of wheat. Even otherwise according to the learned counsel 9.5 percent protein content cannot be considered as a low protein content as 8.5 percent protein is considered to be a safe level for human consumption of wheat. He submitted that when there are two laboratory reports at variance with each other the matter requires further enquiry as to which laboratory reports is correct. In this connection he relied on the judgment in the case of Abdul Salam v. The State (2010 YLR 2033). The learned counsel, as pointed out earlier, has argued that since bail has already been granted to co-accused Anjum Iqbal Warsi he was also entitled to bail under the rule of consistency.
In this connection he placed reliance on the following cases:--
(i) Abdul Salam v. The State (1980 SCMR 142)
(ii) Fide Hussain v. State (PLD 2002 SC 46 at para.13 P.51)
(i.e) Muhammad Yousuf v. The State (1983 SCMR 102 (1)).
(iv) Khadim Hussain v. State (1983 SCMR 124)
(v) Walayat and another v. State (1984 SCMR 530)
10. He further submitted that since the allegations have been levelled against a private limited company the present applicant who is an employee of this private limited company, cannot be accused in the absence of any incriminating material evidence against him that he was involved in playing a specific role in this matter and any benefit had been passed on to him individually. In this connection he placed reliance on the following judgments:--
(1) Mst. Fahmida Begum v. Federation of Pakistan (PLD 2000 Lahore 602 rel. At "B" page 610)
(2) Ch. Abdul Karim v. Grown (PLD 1951 Lahore 342 rel. At 351)
(3) S.G. Guha v. Emperor (AIR 1930 Rangoon at 332)
11. Mr. S. Mahmood Alam Rizvi adopted the arguments of Mr. Kh. Shamsul Islam and Mr. Rasheed A.
Razvi. He submitted that he was a pre-shipment agent who had associates all over the world and the pre-shipment inspection certificates had been issued by his associate Messrs Control Union Inspection International Service GMBH Bremen (Germany). He submitted that under the agreement he and his associates were to conduct the pre-shipment inspection in respect of four tenders i.e. Second tender, third tender, fourth tender and seventh tender and his reports in all the above shipments except tender No.2 were found to be correct whereas in tender No.2, 9.5 percent protein was found in the consignment while the minimum specification was 10% and even the same was fit for human consumption as it is an admitted fact the entire wheat was consumed. He further submitted that an enquiry was conducted on the complaint of a retired officer of FIA who was facing charges of corruption and on the basis of such enquiry the applicant was arrested. He submitted that such an enquiry cannot be conducted against honest businessman and professionals carrying on their work honestly and diligently and in accordance with tender documents and agreements. He also pleaded rule of consistency.
12. Mr. Rizwan Ahmed Dodani the learned standing counsel had strongly opposed the first bail application but after the above bail application had been allowed by this Court, by short order, he had conceded graciously that in accordance with rules of consistency the other applicants were entitled to bail.
13. The learned standing counsel while opposing the first bail application had submitted that all these pre-shipment inspection companies which are represented by the present applicants had malafidely and in connivance with the TCP officials abated to purchase the poor quality wheat and caused great loss to .National exchequer by furnishing incorrect certificate as to the quality of wheat. He submitted that all these companies are well known and reputed pre-shipment inspection companies and it cannot be visualized that they can negligently and in good faith issue incorrect pre-shipment certificates not only in respect .Of one consignments but in respect of different consignment and the only conclusion which can be drawn is that all these pre-shipment certificates have been issued with mala fide motives. So far as the arguments of the learned counsel for the applicant is concerned regarding the fact as to why the present applicants had been nominated in the F.I.R. When the allegations have been made against the companies he submitted that all these three applicants are either the Directors responsible for the implementation of the agreement with TCP or the Chief Executives of the Company and had executed the agreements with the TCP for performing the services of pre- shipment inspection of the consignment of wheat. He submitted that it was the responsibility of the applicants to ensure that the pre-shipment inspection was properly carried out by their associates and correct classification of the grade of wheat and its contents was made in these certificates. He however was not in a position to satisfy this Court that any benefit had been individually passed on to the applicants or there was any connivance with the corrupt TCP officials or they had initialed or counter signed pre-shipment inspection certificate issued by the associate company.
14. The learned standing counsel while supporting the impugned order submitted that the learned Special Court had rightly held that the applicants are equally responsible along with TCP officials for the import of substandard wheat and causing collusive loss to the national exchequer. He argued that the case against the applicants has been lodged under section 409, P.P.C. Because of the fact that the applicants were provided dominion over the moveable property that is wheat for the purposes of inspection and they were involved in breach of trust as instead of making a proper inspection and filing a correct report they filed fictitious reports on the basis of directions received from the corrupt TCP officials. The learned standing counsel therefore prayed that the bail application of applicant Anjum Iqbal Warsey may be dismissed.
15. I have examined the case in the light of the above arguments advanced by the learned counsel and carefully perused the records of the case and the judgments relied on by the learned counsel.
16. Before .I proceed further it will be relevant to reproduce the extract of the impugned order in which the learned Judge has given his findings in support of his decision to reject the bail:-- "I have gone through the case papers and the case law cited by the defence counsel. In my humble view, the points raised by the defence counsel can only be determined after recording the evidence. So far the applicants/ accused are Pre Shipment Inspectors having the responsibility of inspecting the wheat quality on arrival at destination port as per their agreement with TCP and they are equally responsible along with TCP officials for the import of substandard wheat as alleged against them. The case has been recently challaned and the trial has not commenced and as such the bail application merits no consideration at this stage, hence, it is rejected."
17. A perusal of the above extract supports the contention of the learned counsel for the applicants that the order is a sketchy and a non-speaking order and the bail applications have been dismissed without giving any finding as to the involvement of the applicants in the alleged crime and without answering the question which has to be answered in every bail application as to whether the case was one of further enquiry or prima facie it was an open and shut case against the applicants which could only be altered or modified on the basis of evidence adduced and recorded during the trial. Apparently the learned Judge has proceeded on the assumption that it is the obligation of the accused to prove his innocence for grant of bail and the onus does not lie on the prosecution to prove that they have a good case against the accused and no further enquiry is needed to connect the applicants with the crime. I am of the view that even on this ground alone the impugned order cannot be sustained. However, since I have heard the learned counsel at some length it will be therefore appropriate to discuss the other aspects of the case.
18. A perusal of the F.I.R. Reveals that the only allegation made in the F.I.R. Against the companies which were appointed as pre-shipment inspectors is that in the enquiry it was prima facie established that the above mentioned TCP was abusing their official position as public servants and being hand in glove and in connivance and collaboration of pre-shipment inspector etc. Knowingly and dishonestly imported and accepted the inferior quality feed wheat and that too on exorbitant rates as compared with the prevailing market rates and costs and thereby caused a collusive loss to the government exchequer and corresponding gains to themselves and others.
However, no allegation has been made that the pre-shipment inspection companies had acquired any benefit for themselves by conniving with the TCP officials as alleged. It has also not been pointed out as to why the three applicants out of a number of employees of the pre-shipment inspection companies, who must have been involved in carrying on the inspection and certifying the quality of the wheat to be in accordance with the tender documents and the agreement, were singled out for being nominated in the F.I.R. What to say as to whether any specific role has been attributed to them in the challan which has been annexed with the bail application. The important terms and conditions of the work awarded to PSIs by TCP which is highlighted in the interim charge sheet are being reproduced as under:-- "Following are important terms and conditions of the work award to PSIs by TCP:--
(1) Any default, acts or negligence by the Inspection Agent that may result in losses and damages to the TCP, the Inspection Agent shall be liable for such loss.
(2) PSI shall bound to follow procedure as depicted in the agreement, to examine/ascertain that quality of wheat is strictly in conformity with the contracted specifications.
(3) The results of Lab tests at load port shall be deemed to be final and shall be binding on both the buyer and seller.
The offered wheat shall be rejected if it does not meet the standard of any of the factors of specifications.
On completion of loading the PSI will issue, inter alia, the following documents.
Certificate of quality as per specifications relevant import tender.
Certificate of quantity by shore figures Certificate that the wheat is fit for human consumption, without any unpleasant odour, free from any sign of mould, fermentation or deterioration and free from obnoxious and deleterious matter and poisonous weed seeds. Wheat is also free from insect infestation and substantially free from smut, fungus curygaster and striga weed. The wheat is also free from Tilletia India (certified on the basis of lab test results)
(iv) The radiation certificate to be issued by PSI if it is not issued by the authorized Government agency of the country of origin.
19. In the challan it was pointed out that certain amendments were made in the original tender documents and the amendments were recommended and approved , by the TCP officers. These amendments are reproduced below:-
(i) As per original Tender, the testing method was changed from AACC method to any testing method approved by GAFTA or ISO. The AACC method is a scientific method whereas the GAFTA is manual method and the 100% quality cannot be ensured with manual method vis-a-vis the scientific method.
(ii) As per original Tender (Factor No.5 and 18(i.e)), . The word "poisonous" was deleted from standard of factor No.5 and-added the word "substantially" in standard column No.18(i.e) before the words "free from poisonous seeds." Thus the- word "poisonous" weed was deleted and replaced by substantially weed seed. It means that the poisonous weed seed was allowed to be imported.
(i.e) The word "crop year 2008-2009" as per Factor No.18(v) regarding crop year was deleted and replaced by "latest crop" of country of origin. In this way, the old seed lying with the country of origin was allowed to be imported and the exporter was accommodated deliberately.
(iv) As per Clause No.15 Terms of shipment, trans-shipment was not allowed and then shipment from third country ports was only acceptable in case of land locked countries whereas the wording "land locked countries" was deleted and the shipment from all the countries was made acceptable.
This was deliberately made to avoid certificate of origin of that country.
(v) The clause No.18(a-viii) regarding Phytosanitary Certificate in the original Tender document reads as under:-- "original, issued by concerned government authority of country of origin/shipment which should meet Pakistan Plant Quarantine requirements under International Plant Protection Convention
(IPPC) 1997 and import permit issued by Department of Plant Protection Government of Pakistan."
This clause was amended to read as under:-- "Original, issued by concerned government authority of country of origin/shipment which should meet Pakistan Plant Quarantice requirements."
(vi) In this way, the standards of International Plant Protection Convention (1.p.P.C.) 1997 were removed and the substandard wheat was allowed to be imported.
(vii) As per clause No.18 (a-xi) the Radiation Certificate was supposed to be issued by the authorized agency of the country of origin/port of shipment whereas it was amended to be issued by TCP nominated PSI. Thus the wheat with much radiation was allowed to be imported based on the Radiation Certificate issued by TCP nominated PSI (Preshipment Inspector).
(viii)As per Clause No.18(a-xvi) regarding GMO Certificate, the following GMO Certificate was required to be issued by a Government agency or a government authorized agency:-- "There are no transgenic wheat varieties for sale or in commercial production in (Name of Country) at this time"
(ix) Whereas the word or TCP nominated PSI" was added, which means that the GMO Certificate was allowed to be issued by TCP nominated PSI.
(x) As per Amendment, the AnnexureI and II have been withdrawn from the tender documents and also deleted from standard column factor No.12. These two annexure speak about the standard of wheat to be free from quarantine pests, especially Tilletia Indica, T. Walkeri and practically free from soil and weed seeds, thus the substandard wheat was allowed to be imported.
20. From a perusal of the challan it is seen that it has not been pointed out as to whether the pre- shipment inspection report was in accordance with the amendments or not. From a perusal of the terms and conditions of the work awarded reproduced above the condition No.3 is that the result of Lab tests at load port shall be deemed to be final and shall be binding on both the buyer and the seller and apparently the pre-shipment inspection certificates have been finalized on the basis of the examination reports conducted at the load port by the accredited laboratories. Even otherwise there are two conflicting reports one acquired by the associates of the companies of the applicants while finalizing the pre-shipment inspection certificate at the load port and the other acquired at the port of destination from PSCIR/PRAL and it is a settled law that where more than one statement/report of versions are acquired and both of them appear to be plausible then further enquiry is needed to determine which of these statements/reports version is correct. In this connection reliance may be placed on the judgment of a learned Single Judge, of the Lahore High Court in the case of Abdul Salam v. The State reported as 2010 YLR 2033 wherein the learned Single Judge has held as under:-- "(6) It has not been denied by the prosecution side that there are two contradictory reports in this case by the two different sets of auditors of the Board. His matter, when seen from that angle, there seems some force in the contention raised on his behalf that the matter in fact relates to the rendition of accounts to from clear view that if he had committed the criminal breach of trust as alleged against him or that there is no such stigma on him in the matter. Hence, this matter, if seen from that angle, the same certainly calls for further inquiry into his guilt and so is covered within subsection (2) of section 497, Cr. P.0 . "
21. I am of the view that further enquiry is not only needed to determine which of the laboratory report is correct but also further enquiry is needed to determine the specific role of the applicants and as to why they have been nominated and no other employees of the pre-shipment inspection A companies have been nominated and further enquiry is also needed to determine whether any benefit of the alleged illegal gains acquired malafidely with connivance of TCP officials 'has been passed on to them. I am also of the view that further enquiry is needed to determine as to how the applicants can be charged under section 409 P.P.C. And section 5(2) of the Prevention of Corruption Act-II, 1947. I am therefore of the considered opinion that the applicants are entitled to bail. .22. The above are the reasons in support of my short order delivered in court on 30-12-2010 whereby I had admitted the applicant to bail subject to furnishing solvent surety in the sum of Rs.1.0 million and P.R. Bond in the like amount to the satisfaction of the trial Court. However later on an application moved by the applicant I had modified the order to the extent that the surety and the P.R. Bond may be furnished to the satisfaction of the Nazir of this Court as I was informed that the trial Court and the link Judge were on vacations and therefore I directed the concerned Branch to issue release order. Following the rule of consistency I had also admitted the second applicant and the third applicant on bail subject to furnishing solvent surety in the sum of Rs.1.00 million and P.R.
Bond in the like amount to the satisfaction of the Nazir of this Court and had directed the concerned Branch of this Court to issue the release orders.