' SHAHID ANWAR BAJWA, J.---F.I.R. No, 21 of 2010 was registered on 22-11-2010 on a letter written by Secretary, Ministry of Commerce, Government of Pakistan to Director-General F.I.A. It was stated in the complaint that Secretary Commerce had requested F.I.A. to probe into purchase of land measuring 10 acres by National Insurance Corporation of Pakistan Limited (hereinafter referred to as the N.I.C.L.) at Deh Phihai, Korangi, in August, 2009 for an amount of Rs,90 crore i.e, at the rate of Rs, 9 crore per acres. The petitioner at the relevant time was Chairman and Chief Executive of the N.I.C.L. Challan was submitted before the trial Court on December 6, 2010. It was stated in the challan that land was purchased for the N.I.C.L's. Employees Housing Colony. It was further stated in the challan that the Investment Committee of the Board of Directors of N.I.C.L. which comprised of the present applicant and two other Directors was allowed vide order dated 17-1-2011). Two other members of the Board (One of them being applicant in Criminal Bail Application No, 1417 of 2010 was allowed bail by this Court on 30-12-2010) in its meeting held on 29-4-2009 resolved to enhance Real Estate Investment percentage ratio to 40% of total investment. Site was visited by the present applicant and three others Directors and Board of Directors in its 58th meeting held on 8- 6-2009 unanimously approved purchase of 10 acres of land for N.I.C.L. Housing Colony and further resolved that the price be A negotiated. Valuation was arranged from Amir Hussain of Ahmed's Associates which stated the value to be Rs, 92.5 Million per acre. A letter was also obtained from E.D.O. Revenue, Karachi showing rate of Rs, 9.5 crore per acre. Consequently, Investment Committee in its meeting held on. July 1, 2009 formed a Negotiating Committee comprising of four Executives of the N.I.C.L. Finally in its 60th meeting held on 3-8-2009 the Board approved recommendation for purchase of land at the rate of Rs, 9 crore per acre. It was further stated in the challan that after the F.I.R. was registered and investigation commenced, the EDO specifically dehied in writing that he had ever given any opinion that price of the land was in the area was Rs,9.5 crore per acre.
2. Mr. Amir Raza Naqvi, learned counsel for the applicant made the following submissions:-- (1)That approval was unanimously given by the Board of Directors and therefore every director is equally liable. Learned counsel referred to Paras 19, 20 and 21 of the order in Criminal Bail Application No, 1417 of 2010 decided on 17-1-2011. Learned counsel submitted that as Chairman of the Board of Directors petitioner was only one amongst equal and there was no specific and additional role assigned to him.
(2)Learned counsel submitted that the petitioner did not negotiate the price and he merely acted in good faith on the basis of material placed before him. Learned counsel relied upon Fida Hussain v. The State and others, PLD 2002 SC 46, Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad, PLD 2003 SC 668 and on unreported judgment of the Supreme Court in Abdul Latif Brohi v. The State (Civil Petition No,101(K) of 2001 decided by the Supreme Court on 23-11-2011.
(3)Lastly learned counsel submitted that in this case property has been purchased and interest of public exchequer has been adequately secured.
(4)While concluding the arguments Mr.. Amir Raza Naqvi placed on record letter dated 13-3-2010 written by the Medical Officer, Central Prison Karachi. Letter in its entirety states as under:-- ' Subject:Medical Report of Accused Ayaz Khan son of Abdul Razzak Niazi ' Reference:The Honourable Judge, Special Court (Central II), Karachi letter dated 12-3-2011.
' C/O.Epigastric Pain ' Vomiting ' Haemetemesis on/off ' Ageabout 36 years ' O/EBP 120/80 mm/Hg ' Pulse 78 per minute R/Rate 16 per minute ' Comments: Above named accused C/O Epigastric Pain. Vomiting and Haemetemesis on/ off.
For the above complaints he was admitted in Prison Hospital on 7-3-2011 and discharged on 9-3- 2011, and again admitted in Prison Hospital on 11-3-2011 with same complaints and taking symptomatic treatment but condition is same. Further he may be referred to outside hospital for proper investigations, checkup and treatment."
(5) Mr. Mian Khan Malik, learned D.A.-G. made the following submissions: (1)Role of the applicant was different from role of other two Directors who have been granted bail in that the present applicant was working as Chief Executive Officer of N.I.C.L. whereas the Directors earlier granted bail were non-Executive Directors.
(2)Market value of the property was Rs, 4 crores per acre. This has been verified by a report submitted by the National Engineering Services of Pakistan (NES PAK). He also submitted that the EDO who it is claimed gave opinion that the property was valued at the rate of Rs, 9.25 crores per acre has through his letter dated 4-12-2010 clearly stated that he had not given ally such opinion and .the letter did not bear his signature. Learned D.A.-G. submitted that this fact was specifically stated in the challan submitted on December 6,2010 but since by that time 'signatures had not been obtained and sent to the Handwriting expert for his opinion neither the EDO nor Handwriting Expert were cited as witnesses but since then opinion of the Handwriting expert has been received and he has clearly stated that first mentioned letter contained signatures which are at variance with the admitted signatures of the EDO.
(3) N.I.C.L. is entirely owned by the Government and therefore it is the public exchequer which has been robbed.
(4) Learned counsel referred to a letter by Pakistan Banks Association (Letter dated April 8, 2010) wherein it is stated that Ahmed's Associates is only recommended as Valuator against credit facility of Rs, 4 Million or less
4. While exercising his right of reply Mr. Amir Raza Naqvi stated that neither Mr. Qamar Zaman Choudhry another Director of the company nor Mr. Nusrat Hassan who signed the sale-deed have been cited as accused persons. Regarding letter by Pakistan Bank Association, learned counsel submitted, that consideration while granting a loan and consideration for assessing property for real estate purchase are materially different. He submitted that there are a number of reports regarding value of property and these reports are at variance with each other and therefore in any case it is a case of further inquiry. Learned counsel referred to the report by NES PAK and .submitted that even NES PAK has stated that opinions be obtained from other consultants also.
6. I have considered the submissions made by the learned counsel and have gone through the record as well as case law cited at the bar.
7. Criminal Bail Application No, 1417 of 2010 (Syed Hur Riahi Gardezi v. State) was allowed by me vide order dated 17-1-2011. The applicant in that bail application was a Director of the N.I.C.L. and case arose out of the same F.I.R. What prevailed while allowing bail application has been stated in paras 19, 20 and 21 of order dated 17-1-2011. Paras are reproduced as below:-- "-19. Criminal Bail Applications Nos.1417 and 1431 of 2010 relate to plot purchased in Karachi. It is stated in the Challan submitted on 6-12-2010 that property was purchased at the rate of Rs,9 crore per acre. The Board in 58th Meeting held on June 28, 2009 unanimously approved that plot be purchased. It further approved that price would be negotiated only after Board of Revenue gives a benchmark price of the current market prices of the plot. Negotiating Committee comprising of 3 employees of the organization was constituted and none of the applicants was member of the Negotiating Committee. Two different assessments have been submitted with the application. Both these assessm ents are by the same surveyor signed by the same person i.e, Engineer Rafiq Ahmed, Chief Executive of Rafiq Associates. In his report submitted on December 6, 2010, he reported that on the basis of his firm's professional knowledge and experience estimated value of subject property derived and determined on the basis of criteria given in the detailed report was Rs,9.25 crore per acre.
20.Learned Deputy Attorney-General submitted another Evaluation Certificate issued by the same Engineer Rafiq Ahmed on January 1, 2011. He has given value of Rs,7 crore per acre. Regarding his earlier valuation he stated as under:- "On Messrs N.I.C.L Karachi vide their letter No,Nil, dated November 30, 2010, appointed us assessm ent of value of 10 Acres land situated at Deh Phiai, Korangi Township, Karachi, in acceptance of fee/chargers. In this letter it was advised by them that matter is of urgent nature, I was asked to prepare assessm ent as early as possible, because this was required by your office.
' Keeping in view urgency of work I consulted with my associates at Karachi, who are already in this line of service and in good faith I was misguided on their information and strength of value quoted by them I prepare the report already in your office.
' Whatever has been done is in good faith and without consulting at large, now I enclosed herewith revised valuation certificate, which may kindly be replaced with pervious one.
21.In the Interim Challan submitted on 6-12-2010 it is stated that amount was paid to the sellers and investigation was still going on for determining role of sellers and co-shareholders in this regards. There are always two to a tengo. Precise role of applicants and others have not yet been determined. It must be noted that 60th meeting of the Board of Directors was attended besides present applicants and others, by Mr. Qamar Zaman Chaudhary who was at that time a Member of the Board and who is presently Secretary Interior. In the Interim Challan there is no statement whatsoever as to why one Member of the Board was roped in and another Member of Board was being winked at. In any case this is a matter of further enquiry."
8. Role of the present applicant was materially different from the role of the applicant in Criminal Bail Application No, 1417 of 2010 in that applicant in the earlier bail application was a non-Executive Director of the N.I.C.L. and the role assigned to him was that he participated in meetings of the Board of Directors in which meetings decisions for purchase of 10 acres of land were made and on the other, the present applicant was Chief Executive Officer of the N.I.C.L. Therefore principle of consistency in view of different roles of applicant in Criminal Bail Application No, 1417 of 2010 and the present applicant does not come to help of the present applicant.
9. In Fida Hussain's case (supra), facts were that dead body of a boy who had apparently died on account of train accident was taken to hospital. Medical Officer reserved his opinion with respect to cause of death as different parts of the organs as also swabs has been sent to Chemical Examination for detection of poison and/or semen. The applicant came to know that day before the occurrence deceased had told his uncle that he was going with co-accused Ismail. Later on another witness saw the deceased on. Motorcycle'in company of the petitioner. In extra-judicial- confession co-accused Ismail and petitioner admitted act of sodomy followed by murder and throwing of the dead body on rail track. Since co-accused Ismail had been granted bail, Supreme Court observed that the principle of consistency demanded that the petitioner be also granted bail. In Abdul Aziz Khan Niazi's case (supra), role of the co-accused and the petitioner was the same and consequently principle of consistency was followed. As I have observed above, in the present case role of the applicant in Criminal Bail Application No, 1417 of 2010 is materially different from role of the present applicant, in that co-accused/ applicant in. Criminal Bail Application No,1417 of 2010 was not an Executive or 'employee of the N.I.C.L. whereas the applicant was Chief Executive Officer and employee of the N.I.C.L.
10.It is the case of the applicant that valuation of the property was based on two documents; firstly opinion by the EDO. That opinion has been disowned by subsequent letter dated 4-12-2010 written by the. EDO where he has stated that opinion stated to be signed was not signed by him and his signatures were forged ones. This fact is stated in the challan submitted on 6-12-2010.
Handwriting Expert's opinion is now available and there are therefore reasons to suggest that opinion of the EDO was a managed/fabricated document. Second document was the opinion by Ahmed's Associates. They have in, their opinion stated the value of the property to be Rs, 9.25(sic.) per acre. Subsequently they resiled from their earlier opinion vide their letter dated January 1, 2011.
Opinion of Ahmed's Associates is a just one page document with which no basis of calculation of the valuation or assumptions on the basis of which the value had been calculated or any reference to any market survey or any transaction has been made. It is rather difficult to believe that a corporate entity would just dish out almost a billion rupees on the basis of a simple scrap of paper which does not even state the assumptions, survey, the basis of valuation or instances based on which that valuation is arrived at. As responsible officers of the Organization it was the applicants who were entrusted with responsibility to submit report to the Board and negotiate to Help form opinion and organization's management's evaluation for the Board and there are reasonable grounds to believe that such recommendations were based on documents which were either forged or were managed being without any scientific basis or report accompanying them.
Management of commercial organization, comprise of seasoned professionals and not simpletons and such professionals do not accept such statement at their flimsy face value.
11. While exercising his right of reply Mr. Naqvi stated that another Director Mr. Qamar Zaman Chaudhry has not been proceeded against. Mr. Chaudhry was merely a Director and was not involved in the managerial hierarchy of the Organization. Mr. Naqvi also argued that Mr. Nusrat Hassan who signed the sale-deed has not been cited as an accused person it may be stated that Mr. Nusrat Hassan signed the sale-deed after Board of Directors had decided. He had no role. whatsoever in putting together the package on the basis of which the Board of Directors decided.
Therefore even his role is different from the role of the present applicant.
12. Mr. Mian Khan Malik, extensively referred to the report submitted by NES PAK and Mr. Amir Raza stated that even NES PAK has said that opinion be obtained from other consultants. The report of the NES PAK runs into almost 18 pages and gives the basis on which they compiled their report and reached their conclusion. Mere fact that they have stated that the N.I.C.L. may obtain opinion from other consultants would not mean that their report is baseless. In any case, it is what it states to be: a professional opinion based on professional valuation. Mere fact that professional while giving opinion states that another opinion may be obtained cannot be a basis for saying that opinion obtained by the professional is of no value at all.
13.Result of the above discussion is that this bail application is dismissed.
14.Needless to observe that none of the observation made above shall be taken into consideration by the trial Court which has the task of deciding upon guilt or innocence of the person standing trial.