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 FIA. It was stated in the complaint that Secretary Commerce had requested FIA to probe into purchase of land measuring 10 acres by National Insurance Corporation of Pakistan Limited (hereinafter referred to as the NICL) 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 NICL. ChaIlan was submitted before the trial Court on December 6, 2010. It was stated in the challan that land was purchased for the NICL's Employees Housing Colony. It was further stated in the challan that the Investment Committee of the Board of Directors of NICL which comprised_ Chairman 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 Chairman 'and three other Directors and Board of Directors in its 58th meeting held on 8-6-2009 unanimously approved purchase of 10 acres of land for NICL Housing Colony and further resolved that the price be 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 NICL. 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 denied 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. Applicant in Criminal Bail Application No, 256 of 2011 was working as Executive Director (Finance and Communication) and was a member of Negotiating Committee which negotiated A and settled the price. Applicant in Criminal Bail Application No,257 of 2011 was General Manager Real Estate and was also a member of the Negotiating Committee which negotiated and settled the price. Applicant in Criminal Bail Application No,258 of 2011 was Company Secretary and was also member of the Negotiating Committee which negotiated and settled the price and applicant in Criminal Bail Application No, 259 of 2011 was General Manager Law and is alleged to have played a critical role in the entire process.
3. Mr. Ilyas Khan, learned counsel for the applicants submitted that all applicants were arrested on 3-11-2010 and -F.I.R: was 'registered on 22-11-2010. Mr. Ilyas Khan submitted that 31st meeting of-the Investment Committee of the Board of Directors was held on April 29, 2009. He submitted that applicant in Criminal Bail Applications Nos.256 of 2011 and 258 of 2011 were in attendance - but not as members of the Investment Committee. He submitted that .the. Committee decided to purchase land for NICL Housing Colony and decided to approve a site visit of land situated on Korangi Industrial Area, Shah Faisal Colony Road. In a meeting of the Board of Directors in which applicant in Criminal Bail Application No, 258 of 2011 was in attendance but not as a member, purchase of the plot in question was approved and legal search was ordered and Negotiating Team comprising, of applicant in Criminal Bail Applications Nos. 256 of 2011, 259 of 2011 and 258/2011 was constituted. Thereafter the learned counsel referred to the 58th meeting of the Board of Directors. During the meeting applicant in Criminal Bail Applications Nos. 258 of 2011 and 259 of 2011 were in attendance. The Board unanimously approved purchase of 10 acre plot in Korangi and ordered that the price should be negotiated only after the Board of Revenue gives benchmark price and current market price of the plot: Learned counsel submitted that in 59th meeting held. on 1st July, 2009, in which meeting the Company Secretary, applicant in Criminal Bail Application No,250 of 2011 was in attendance but not as a member, it was decided that since legal search. was underway the decision be deferred. However, a negotiating team comprising of the 4 applicants was constituted. In 60th meeting of the Board of Directors held on August .3,- 2009,. the Board approved purchase of plot at the rate of 9 Crore per acre. Learned counsel pointed out that- this meeting was attended amongst others by one Qamar Zaman Choudhry who was Director at that time. Thereafter the learned counsel made the following submissions:
(1) Decision of purchase, was made in a meeting by the Board of Directors and none of the applicants was a member of the Board of Directors.
(2) Negotiating Committee relied upon the report submitted by EDO Revenue where he had submitted that the price was in the region of 9.5 Crore per acre. Similarly price was also stated to be in the same region by Ahmed's Associates and the applicants had no reason to doubt the veracity of the statement made by EDO Revenue and Ahmed's Associates.
(3) General Manager Nusrat Hassan who signed the sale-deed and who made the payment and Qamar Zaman Choudhry who was also member of Board of Directors have not been cited as accused persons and this amounts to one of the worst examples of pick and choose.
(4) Learned counsel submitted that amount of Rs, 62 Crore has been recovered and property is still with the NICL and therefore it is. not a case of loss to public exchequer.
(5) Learned counsel submitted that bail cannot be denied as a punishment. He relied upon Tariq Bashir and 5 others v. The State; PLD 1995 SC 34:
(6) Learned counsel further submitted that paramount consideration in bail matters is that everybody is innocent till proved guilty. Learned counsel relied upon Raja' Shamshad Hussain v.
Gulraiz Akhtar and others, PLD 2007 SC 564.
(7) Learned counsel submitted that no conversion to own uses has been established or even alleged and therefore section 409, P.P.C. is not at all attracted. He relied upon Abdul Rashid Nasir and others v. The State 2009 SCM R 517.
(8) Learned counsel referred to an order passed by this Court in Criminal Bail Application No, 417 of 2010 (Syed Hur Riahi Gardezi v. The State) decided on 17-1-2011 and submitted that applicants are entitled to bail on the ground of rule of consistency. He relied upon Fida Hussain v. The State and others PLD 2002 SC 46. Learned counsel also referred to Habibullah Warriach v. The State Criminal Miscellaneous Application No, 14414-B of 2010, decided by a Single Judge of Lahore High Court on 10-2-2011.
4. Mr. Mian Khan, learned D.A.-G. submitted that the EDO who it was 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 any such opinion and the letter does 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 the signatures of EDO had not been obtained and sent to a 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 signature on first mentioned letter are at variance with admitted signatures of the EDO: Learned DAG submitted that NICL is an entity entirely owned by the Government and therefore it is the public exchequer which has been robbed. 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. He further submitted that petitioners were members of the Negotiating Team and they were supposed to be knowing of entire position and they deliberately in connivance with the Chief Executive of the Organization misled the Board of Directors for making decision to purchase at an exorbitant rate and thus caused loss to the NICL. Learned D.A.-G. refereed to Pakistan Banks Association letter dated 8-4- 2010. Learned D.A.-G. further submitted that Mr. Nusrat Hassan and Qamar Zaman have not been cited as accused persons for the simple. reason that they have no role in negotiating or settling the price and Mr. Nusrat Hassan came into the picture only after the Board had decided and merely executed a. decision by the Board.
5. Mr. Ilyas Khan, learned counsel for the petitioner while exercising his right of reply submitted that it is a case of two versions and there is difference of opinion available and therefore, it is a case of further inquiry. He further submitted that there is no material whatsoever, available with the prosecution that any of the applicant has got any personal benefit in any sense of the word whatsoever.
6. We have heard arguments of the learned counsel and have also gone through the record as well as case-law cited at the bar.
7. First submission by the learned counsel for the applicants was that decision for purchase was made in meetings of the Board of. Directors and none of the applicants was a member of the Board of Directors. Suffice it to observe that Board of Directors acted on the basis of information or report furnished to it by the managerial hierarchy. Had the Board overruled the managerial hierarchy on any matter it could have been said that decision was made by the Board acting alone. Similarly none of the applicants pleaded that they were forced by the hierarchy, authority or any member of the Board to give a dishonest report to the Board.
8. 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 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 from 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.
9. Petitioner in Criminal Bail Application No, 259 of 2011 was the one to whom the letter stated to have been written by the EDO was addressed. Neither this applicant nor other applicants have said anything in their bail application as to how the letter came to them.
10.Mr. Ilyas Khan 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. Ilyas Khan 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. Reliance upon Tariq Bashir's case (Supra) does not help the petitioner because though the principle stated in Tariq Bashir's case is unexceptionalable, in the present case there is clearly available some material to suggest involvement of the petitioner in the alleged offence. Same is the position of Raja Shamshad Hussain's case. Learned counsel relied upon Abdul Rashid Nasir's case for his contention in respect of section 409, P.P.C. which has been stated in Para 15 of the judgment, which is in the following words:-- "15. In addition to above, it may be observed that to constitute an offence under section 409, P.P.C.., there must not only be entrustment but dishonest, misappropriation or conversion to one's own use or dishonest disposal of property by the offender. As clearly obvious from the scrutiny of evidence, such ingredients are absolutely lacking in the present case. There is no evidence to conclude that the Bank guarantee was encashed by the appellants, or by someone else acting on their behalf and the cash was misappropriated. Even there is no material to establish that the bank sustained any loss attributable to 'the appellants on account of alleged transaction."
11. Section 409 of the Pakistan Penal Code is in the 'following Words:-- "409. Criminal breach of trust by public servant or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any 'dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
12.Section 405, P.P.C. which defines Criminal breach of trust may also be noted:-- "405. Criminal breach of trust. Whoever, being in any manner entrusted with property or with any dominion over property -dishonestly misappropriates or converts to his own use that property, or dishonestly use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust or wilfully suffers any other person so to do, commits "criminal breach of trust".
13.Applicants being officers entrusted with the responsibility of 'settling the price at which the land was purchased had a kind of dominion over the property of the NICL. They have been accused of inter alia, dishonestly disposing of property. Word "dishonestly" is defined in section 24, P.P.C. and means doing something for causing wrongful gain or wrongful loss. The allegation is that property was purchased at an exorbitant amount and thereby a wrongful loss was caused to the NICL. Therefore, contention of learned counsel for the applicants that section 409 is not attracted has no force.
14. Result of the above discussion is that these bail applications are dismissed.
15. Needless to observe that none of the observations made above, shall be taken into consideration by the trial Court which has the' task of deciding upon guilt or innocence of the persons standing trial.