MANZOOR AHMAD MALIK, J. - Through this single order, I am inclined to decide the following SIX bail after arrest petitions, as these petitions, have arisen out of the same F.I.R.1 No. 24/2010,.dated 12.10 2010, registered under Sections 409, 420, 468, 471, 109, P.P.C. Read with Section 5(2) of the Prevention of Corruption Act, 1947, at Police Station F.I.A., Anti-Corruption Circle, Lahore, on the statement of Mr. Zafar Mehmood, Secretary, Ministry of Commerce, Government of Pakistan, Islamabad:-
(i) Criminal Miscellaneous No. 14414-B/2010 (Habibullah Warriach v. The State etc.);
(ii) Criminal Miscellaneous No. 14568-B/2010 (Syed Hur Riahi Gardezi v. The State etc );
(iii) Criminal Miscellaneous No. 315-B/2011 (Syed Naveed Hassan Zaidi v. The State);
(iv) Criminal Miscellaneous No. 14449-B/2010 (Syed Ali Athar Naqvi v. The State)
(v) Criminal Miscellaneous No. 14450-B/2010 (Zahid Hussain v. The State)
(vi) Criminal Miscellaneous No. 14400-B/2010 (Muhammad Zahoor v. The State).
2. The contents of the F.I.R. Registered on 12th October, 2010, are that a case regarding purchase of land by N.I.C.L. (National Insurance Corporation Limited) at Mouza Toor Warriach, Ferozepur Road, District Lahore, was heard in the Hon'ble Supreme Court of Pakistan. While going through the record of the case pertaining to the allegations of malpractices in the purchase of land, it transpired before the august Court that the management of N-I-C.L. Had paid the purchase price of the land to the seller party without getting the land mutated in favour of the N.I.C.L. Which was considered to be serious breach of financial discipline and major irregularity. It was also stated in the F.I.R. That it may also be an indication of much deeper malaise in contracting purchase of lands at various places and at different times by the N.I.C.L., hence, the F.I.R.
3. Before proceeding with the bail petitions in hand would like to quote a brief history of the case, which came on the surface, during its investigation, as has been given by the learned Trial Court in its bail refusing order dated 13.12.2010, which is to the effect that the National Insurance Corporation Limited (NICL) gave on advertisement in the Newspapers to purchase 803 Kanals land to launch a housing society for the employees of said corporation. The pre-requisite for bidding was that only that owner of land could participate in the bidding who was owner of 100% of the required land and certain areas were specified where the land was required. Five different companies including M/s. Privilege Farm (Pvt.) Limited participated in the said bidding. The rates and, locations offered by the rest of the four companies were apparently disqualified and bid of M/s. Privilege Farm (Pvt.) Limited favourable for the corporation but despite that all the said four companies were technically knocked out and were was accepted despite the fact that said company was not owner of 803 Kanals of land which was the pre-requisite to participate in the said bidding. Land measuring 699 Kanals was owned by the family members of accused Habibullah Warriach, whereas, 104 kanals of land was purchased from one Khizer Hayat family through accused Akram, being general attorney.
The said land was sold out to the corporation at the rate of Rs. 21/- Lakhs per Kanal and the said company had purchased 104 Kanals of land which was adjoining to said 699 Kanals of land of Habibullah Warriach's family at a very low rate of Rs. 2/- Lakhs per Kanal in the same year i.e. 2010 but the same was transferred in favour of corporation at much higher rate of Rs. 21/- Lakhs per Kanal. The entire amount of Rs. 1,68,63,00,000/- (Rupees One Billion Sixty-eight Crores and Sixty- three Lakhs only) was paid to M/s. Privilege Farm (Pvt.) Limited but neither any sale-deed was registered nor any mutation of land was attested and even possession was not transferred in favour of the National Insurance Company Limited (NICL).
4. For a facility to reference, it is also pertinent to highlight some important aspects of the working of the Board of Directors of National Insurance Company Limited (NICL) which surfaced during the course of arguments. National Insurance Company Limited (NICL) is controlled by the Ministry of Commerce, Government of Pakistan, Islamabad having its head office at Karachi. Management of the Company is controlled by its Board of Directors headed by the Chief Executive having four Members. At the relevant time, Ayaz Khan Niazi was the Chief Executive, while, Syed Naveed Hassan Zaidi, Syed Hur Riahi Gardezi, Javed Syed and Amin Qasim Dada were Directors of the said Board.
The Board of Directors, for its assistance, has created/estab/estabished different sub-committees, such as, investment Committee, Special Committee of Real Estate, Human Resources Committee and Audit Committee. primary function of the National Insurance Company Limited (NICL) is the Insurance business; However, the Company (NICL), used to invest amount in different profitable schemes/business, and area of investment was to be proposed by the concerned Committee constituted by the Board of Directors of the National Insurance Company Limited (NICL).
5. Dr. A.B. Basit, Advocate, in support of Criminal Miscellaneous No: 14414-B/2010 filed by Habibullah Warriach (petitioner), contends that the petitioner has no concern whatsoever with the affairs of M/s- Privilege Farm (Pvt.) Limited who allegedly sold land to the National Insurance Company Limited (NICL); that the petitioner has been implicated in this case only for the reason that his real son co-accused Mohsin Warriach was Managing Director of M/s. Privilege Farm (Pvt.) Limited; that no portion of the sale proceeds of the land sold to National Insurance Company invited (NICL) was credited into the account of the petitioner and the crossed cheques, issued in this regard, by the National} insurance Company Limited (NICL), were in the name of M/s,' Privilege Farm (Pvt.) Limited, which were credited into the account of said Company (M/s Privilege Farm (Pvt.) Limited); that the petitioner was maintaining a joint account with his son Mohsin Warriach but no direct amount from the National Insurance Company. Limited (NICL) was ever-deposited/credited/transferred in the said joint account; that the only allegation against the petitioner as per Investigating Agency, is that the entire amount of sale proceeds of the land was transferred, from the account of M/s. Privilege Farm (Pvt.) Limited, by Mohsin Warriach, into his personal account/ wherefrom, amount of Rs 44,78,54,462/- (Rupees forty-four crores seventy-eight la fifty four thousand four hundred sixty two only) wa transferred in the joint account of the petitioner and his so (Mohsin Warriach) and, thereafter, petitioner withdrew Rs 19,72,62,500/- (Rupees nineteen crores, seventy-two lakh sixty- two thousand and five hundred only) from the sai personal joint account; that this amount was withdrawn a the asking of Mohsin Warriach for the purchase of foreign exchange; that the petitioner, after conversion of the amount into the foreign currency, deposited the same in the foreign currency account of Mohsin Warriarh; that even the amount of Rs. 19,72,62,500/- (Rupees nineteen crores, seventy two Lakhs, sixty-two thousand and five hundred only), which wa withdrawn by the petitioner for the purchase or foreign currency account, has been withdrawn by the Investigate Agency from the foreign1 currency account of petitioner's so Mohsin Warriach; that the whole amount of R.s 1,68,63,0, 000/- (Rupees One Billion Sixty-eight Crores an Sixty-three Lakhs only), which was paid by the Nation Insurance Company Limited (NICL) to M/s. Privilege Far (Pvt.)
Limited, has been reimbursed into the account of th National Insurance Company Limited (NICL); that there I nothing on the record to show that the petitioner took an step regarding the alleged transaction; that there is no mala fide on the part of the petitioner qua the transaction I question; that the provision of Section 409, P.P.C. Is n attracted qua the petitioner while rest of the provisions d not fall within the prohibitory clause of Section 497, Cr.P.C that the petitioner is not connected with the allege commission of the offence, in any manner, and that as th case against the petitioner is one of further inquiry, therefor he is entitled to bail after arrest.
6. Both the learned Standing Counsel for the Federal Government have vehemently opposed the b petition of Habibullah Warriach petitioner and contend that he petitioner is fully involved in this case alongwith his son (Mohsin Warriach), as an amount of Rs. 44,78,54,462/- (Rupees forty-four crores seventy-eight lac fifty four thousand four hundred sixty-two only) was transferred into the joint account of the petitioner and Mohsin Warriach, wherefrom, the petitioner withdrew an amount of Rs. 19,72,672,500/- (Rupees nineteen crores, seventy-two lacks, sixty-two thousand and five hundred only). However, both the learned Standing Counsel, under instructions from the Investigating Officers, state that except this transaction, there is no other evidence against the petitioner. It has been confirmed by the learned Law Officers that the entire sale proceeds of Rs.
1,68,63,00,000/- (Rupees One Billion Sixty- eight Crores and Sixty-three Lakhs only), received by M/s. Privilege Farm (Pvt.) Limited from the National Insurance Company Limited (NICL), has been reimbursed/credited into the account of the National Insurance Company Limited (NICL).
7. While making submissions in support of Criminal Miscellaneous No. 14568-B/2010 filed by Syed Hur Riahi Gardezi (petitioner) and Criminal Miscellaneous 315- B/2011 preferred by Syed Naveed Hussain Zaidi, M/s. Ashtar Ausaf Ali and Salman Aslam Butt, Advocates, contend that both the petitioners are members of the Board of Directors of the National Insurance Company Limited
(NICL) without any remuneration and they are functioning as honorary Directors; that both the petitioners did not derive any pecuniary benefit from the transaction alleged in the F.I.R.; but besides .The petitioners, there were other Directors of the National Insurance Company Limited
(NICL) and those Directors include two Additional Secretaries, Ministry of Commerce, Government of Pakistan, Islamabad, who too have signed the proceedings of the Board relating to these transactions but none of them has been arrested which shows that the petitioners are being discriminated; that the petitioners signed minutes of the meetings in good faith and did not derive any benefit from the said transaction; that there is no mala fide on the part of the petitioners; that all the transactions in question were scrutinized by the Special Committee of the N.I.C.L for Real Estate and none of the petitioners was Member of the said Committee which even got evaluation report from M/s. SA Associates and M/s, Medallion Services; that the prosecution has not been able to show any evidence to connect the petitioners with the alleged commission of the offence; that the provisions of Section 409, P.P.C. Are not attracted against the petitioner while rest of the provisions do not fall within the prohibitory clause of Section 497, Cr.P.C.; that case of the petitioners is one of further inquiry and they are entitled to bail. While concluding his submissions, learned counsel for Syed Hur Riahi Gardezi (petitioner) further contends that the petitioner is a sick, person and on account of his sickness, he was allowed ad-interim post arrest bail in this case by a learned Bench of this Court vide order dated 24.12.2010, therefore, petitioner is also entitled to bail on that account as well.
8. Both the learned Standing Counsel for the Federal Government have opposed this bail petition on the grounds that both the petitioners', being Directors of the National Insurance Company Limited (NICL), participated in the crucial meetings which took place regarding finalization of this transaction; that the petitioners were Members of the Investment Committee of the Board of Directors; that the National Insurance Company Limited (NICL) was informed by the Transparency International about this fraud in the beginning of the year 2010 and, thereafter, meeting of the Board was held on 9.2.2010 which was attended by the petitioners but, as per record, no action was suggested by them. However, under instructions from the Investigating Officers present in Court alongwith the record, they have stated that there is no evidence against the petitioners to the effect that they derived any pecuniary benefit from the transaction in question and they have been arrested for the reason that they have signed minutes of the meeting held regarding this transaction.
9. As far as Syed Ali Athar Naqvi, Zahid Hussain and Muhammad Zahoor, respective petitioners in Criminal Miscellaneous No. 14449-B/2010, Criminal Miscellaneous No. 14450-B/2010 and Criminal Miscellaneous No. 1'4400r B/2010, are concerned, their learned counsel Mr. Amjad Farouck Bismell Rajpout, Advocate, while seeking bail after arrest on their behalf contends that these three petitioners, being employees of the National Insurance Company Limited (NICL), were Members of the Special Committee for Real Estate having no concern with the policy matters/decisions of the Company; that the petitioners have not derived any pecuniary advantage from the transaction in question; that the value of the land was assessed by M/s. SA Associates which was headed by one Muhammad Imran who has been allowed bail after arrest by the learned Trial Court and the bail ganting order has not been challenged by the State/F.I.A that the petitioners are neither named in the F.I.R. Nor any incriminating material was recovered "from them; that the petitioners are not connected with the alleged commission of the offence and their case is one of further inquiry to that e>?Tent, therefore, they are entitled to bail after arrest.
10. Both the learned Standing Counsel for the Federal Government, while opposing the bail after arrest of these three petitioners, submit that the petitioners were Member of the Real Estate Committee and submitted the report on the basis of which decisions were taken by the Board of Directors of NICL; that the mala fide of these three petitioners is evident from the fact that they did not bother to check the documents which were offered by M/s. Privilege Farm (Pvt.) Limited; that so much so, the value assessed by the Board of Revenue was not taken into consideration by the petitioners; that the petitioners are very much connected with the alleged commission of offence, therefore, they are not entitled to the concession of bail after arrest. However, on a query made by this Court, both the learned Law Officers are unable to show me any evidence against the petitioners to the effect that they derived any pecuniary benefit from the transaction in question.
The learned Standing Counsel have confirmed that the evaluation report was prepared by M/s. SA Associates, which was being run by one Muhammad Imran, who has been allowed bail after arrested by the learned Trial Court on 15.12.2010, which, according to them, has not been assailed before the higher forum, so far.
11. Patient hearing was given to the learned counsel for the petitioners in all the six bail petitions as well as both the learned Standing Counsel for the Federal Government appearing on behalf of the State/F.I.A.
12. Before forming opinion qua merits of all the six bail petitioners, it is imperative to state here two admitted facts, which are common in all these petitions and relevant/necessary for a just decision of the bail petitions in hand. Firstly, the whole amount of sale proceeds i.e. Rs. 1,68,63,0, 000/- (Rupees One Billion Sixty-eight Crores and Sixty-three Lakhs only) paid by the National Insurance Company Limited (NICL) to M/s. Privilege Farm (Pvt.) Limited, has been received/credited back into the account the N.I.C.L. And, secondly, the prosecution case against all the petitioners, mainly, rests upon the documentary evidence, which is already in possession erf the Investigating Agency/Prosecution.
13. First of all, I would .Like to take up Criminal Miscellaneous No. 14414-B/2010 filed by Habibullah Warriach (petitioner). The crux of the prosecution case is that 803 f&hals of land was purchased by National Insurance Company Limited (NICL) from M/s. Privilege Farm (Pvt.) Limited for a consideration of Rs. 1,68,63,00,000/- (Rupees One Billion Sixty-eight Crores and Sixty-three Lakhs only) but without registration of any sale-deed and mutation of land, the price in question was paid to M/s. Privilege Farm (Pvt.) Limited and even the price, at which the land in question was purchased, was very high. However, the learned Law Officers have not been able to show that Habibullah Warriach (petitioner) has any connection/concern with M/s. Privilege Farm (Pvt.)
Limited, in any capacity coupled with the fact that no sale proceeds were directly credited into his account. The only evidence, so far, available on the record., against the petitioner is that the crossed cheques of the above-said amount of Rs. 1.68.63.0. 000/- (Rupees One Billion Sixty-eight Crores and Sixty-three Lakhs only) were issued in the name of M/s. Privilege Farm (Pvt.) Limited, which were credited into the account of the said Company (M/s. Privilege Farm (Pvt.) Limited).
From the said account, the whole amount was transferred into the personal account of petitioner's son Mohsin Warriach (principal co-accused) and from there Rs. 44,78,54,462/- (Rupees forty-four crores seventy-eight lac fifty four thousand four hundred sixty two only) were transferred into the joint personal account of the petitioner and his son Mohsin Warriach, wherefrom an amount of Rs.
19,72,62,500/- (Rupees nineteen crores, seventy-two Lakhs, sixty two thousand and five hundred only) was withdrawn by the petitioner. A specific question was asked to the learned Standing Counsel for the Federal Government whether the prosecution has collected any other evidence to establish abetment of the petitioner with the principal accused Mohsin Warriach, the answer was that the prosecution is relying only on documentary evidence which shows that an amount of Rs.
44,78,54,462/- (Rupees forty-four crores seventy-eight lac fifty four thousand four hundred sixty two only) was transferred into the joint account of the petitioner with his son Mohsin Warriach and, therefrom, an amount of Rs. 19,72,62,500/- (Rupees nineteen crores, seventy-two lakhs, sixty two thousand and five hundred only) was withdrawn by the petitioner. As observed earlier, the whole amount of Rs. 1.68.63.0. 000/- (Rupees One Billion Sixty-eight Crores and Sixty-three Lakhs only), which was paid by the National Insurance Company Limited (NICL) to M/s. Privilege Farm (Pvt.)
Limited, has been deposited back into the account of the Company (NICL) and the case against the petitioner is based on documentary evidence which is already in possession of the Investigating Agency/prosecution and such as the case against the petitioner is one of further inquiry within the ambit of Section 497(2), Cr.P.C., therefore, Criminal Miscellaneous No. 14414- B/2010 filed by Habibullah Warriach (petitioner), is allowed and Habibullah Warriach (petitioner therein) is admitted to bail subject to his furnishing bail bonds in the sum of Rupees twenty Millions only with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial-I) of this Court.
14. As far as two bail petitions bearing Criminal Miscellaneous No. 14568-B/2010 filed by Syed Hur Riahi Gardezi (petitioner) and Criminal Miscellaneous No. 315- B/2011 preferred by Syed Naveed Hassan Zaidi, are concerned, both these petitioners were Directors of National Insurance Company Limited (NICL) and it has not been denied by the prosecution that they were not receiving any remuneration for the performance of their obligations in the said capacity. Moreover, on specific queries made by this Court as to whether there is any evidence against them on the record to show that either they gained any pecuniary benefit or that they are related to the principal accused (Mohsin Warriach), both the learned Standing Counsel for the Federal Government, after having perused the record and under instructions from the Investigating Officer present in Court, state that there is no such evidence. In this view of the matter, I am of the, prima facie, view that case of these two petitioners, is also one of further inquiry falling within the ambit of Section 497(2), Cr.P.C. So far as case of Syed Hur Riahi Gardezi (petitioner) is concerned, it is pertinent to mention here that vide order dated 24.12.2010 passed by another learned Bench of this Court, he was allowed ad- interim post-arrest bail on the ground of ailment, after taking into consideration report of the Medical Board of the Services Hospital, Lahore, vide letter No. SMB/MED/3074/SH, dated 24.12.2010, which is to the following effect:- "In compliance with the orders of Honourable Lahore High Court, Lahore, dated 23.12.2010, a Special Medical Board was constituted vide order No. SMB/MED/3072-73/SH, dated 24.12.2010 (Annex-A), for examination of Patient Syed Hur Riahi Gardezi, admitted in GOB Room No. 9, Services Hospital, Lahore. The Special Medical Board assembled in the office of undersigned on 24.12.2010 at 09.00 a.m. After examination, the opinion of Special Medical Board is as under:- "On review of his history and clinical examination, the board is of firm opinion that the tumor in the right testis has increased in size since the past examination. The two cervical lymph nodes are also increased in size. The chances of this patient having cancer of right testis are very high. The board recommends strongly that he should be operated upon urgently on the next operation list by concerned surgeon. The right testicular mass should be removed and with lymph node sampling of cervical region should be done. This should be followed by a diagnostic laparoseopy to rule out para erotic lymph node involvement. At this stage detention of the petitioner is hazardous to his life."
In this scenario, apart from other grounds, as discussed above, Syed Hur Riahi Gardezi (petitioner) is also entitled to bail on the ground of ailment because according to the opinion of the Medical Board, "At this stage detention of the petitioner is hazardous to his life". Resultantly, Criminal Miscellaneous No. 14568-B/2010 filed by Syed Hur Riahi Gardezi (petitioner) is allowed and the ad- interim post arrest bail, already granted to him vide this Court's order dated 24.12.2010, is hereby confirmed, subject to his furnishing fresh bail bonds in the sum of Rupees One Million only with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial-)) of this Court.
Similarly, Criminal Miscellaneous No. 315-B/2011 preferred by Syed Naveed Hassan Zaidi is also allowed and the petitioner (therein) is admitted to bail subject to his furnishing bail bonds in the sum of Rupees One Million only with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial-1) of this Court.
15. So far as case of Syed Ali Athar Naqvi, Zahid Hussain and Muhammad Zahoor, respective petitioners in Criminal Miscellaneous No. 14449-B/2010, Criminal Miscellaneous No. 14450-B/2010 and Criminal Miscellaneous No. 14400-B/2010, is concerned, admittedly, they were not Members of the Board of Directors of the National Insurance Company Limited (NICL). The allegation against them is that, being members of the Special Committee for Real Estate, they prepared a wrong report with mala fide intention, to give a favour to their co-accused (Mohsin Warriach). The main contention of the learned counsel for the petitioners is that the petitioners based their report on the report prepared by Surveyor Muhammad Imran (co-accused), who has been allowed bail by the learned Special Judge (Central), Lahore on 15.12.2010 and that there is no evidence on the record that these petitioners derived any pecuniary benefit from this transaction. Learned Standing Counsel for the Federal Government, have admitted that, so far, the said ing order has not been assailed before the higher forum. There is also no evidence on the record that these petitioners derived any pecuniary advantage from this transaction, therefore, their case is also one of further inquiry within the meanings of sub-section (2) of Section 497, Cr.P.C. Therefore, all these three bail petitions filed. By Syed Ali Athar Naqvi, Zahid Hussain and Muhammad Zahoor, petitioners in Criminal Miscellaneous No. 14449-B/2010, Criminal Miscellaneous 14450-B/2010 and Criminal Miscellaneous No. 14400- B/2010, respectively, are allowed and the petitioners (therein) are admitted to bail in the sum of Rupees One Million only each with one surety each in the like amount to the satisfaction of the Deputy Registrar (Judicial-I) of this Court. However, before parting with the order, it is made cl sar that the above observations/findings made in all the six bail petitions are only tentative in nature and relevant for the purpose of the instant bail petitions, therefore, I am sanguine that these observations shall not influence the learned Trial Court during the trial, in any manner.