SHAHID ANWAR BAJWA, J.---Through this judgment I proposed to decide Criminal Bail Applications Nos.1415, 1416, 1417, 1429, 1430 and 1431 of 2010 as, substantially, common questions of facts and law are involved in these matters.
2. Criminal Bail Applications Nos.1415 and 1429 of 2010. F.I.R. No,13 of 2010 was recorded at Police Station FIA Corporate Crime Circle Karachi on 22-11-2010 on a written communication sent by Secretary Commerce, Government of Pakistan to Director General FIA. It was stated in the complaint that Secretary Commerce had requested Director-General FIA to probe into purchase of land at various places, date and time by National Insurance Corporation of Pakistan Ltd (hereinafter to be referred to as the N.I.C.L.). Director General FIA was requested to register separate case regarding prima facie embezzlement of N.I.C.L. funds in the award of contract of painting work and furniture to Messrs Casa Bella, Lahore for work at Karachi for Rs,26,987 million and at Islamabad for Rs,9.31 million. It was also stated that tender for Karachi was for 6 floors but contractor apparently was asked to paint only 4 floors. Consequently,. F.I.R. under sections 409/420/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act-II, 1947 was registered.
3. Applicants in both these bail applications were non-executive nominees on the Board of Directors of the N.I.C.L. Challan was submitted on 6-12-2010. In the Challan it was stated that during the course of investigation it came on record that on 1-3-2009 NICL got published two advertisements in the daily Dawn inviting pre-qualification applications from reputed contractors for interior refurbishing and furniture work of NICL office at Karachi. Similar applications were invited for Islamabad premises also. Various firms applied. Messrs Casa Bella Lahore was awarded contract including contract for the following:-- ITEMS KARACHIISLAMABAD OFFICE OFFICE Bill of QuantityRs, 26,987,298 Furniture Rs, 25,178,798Rs, 7,851,000 Painting Rs .808,500Rs .145,900
4. It is further stated in the Challan that initially tender notices for pre-qualification of contractors and consultants for interior refurbishing etc. was advertised for 4th floor only of Karachi office only.
Later on without issuing fresh tender notice bids were obtained from contractors and consultants for 2nd, 3rd, 4th, 5th and 6th floors of NIC building as well as Islamabad office. Therefore, volume of works was enhanced without inviting fresh tenders. On the basis of rates of Casa Bella budget for 4th floor was worked out only at Rs,43.4 million but subsequently figure was enhanced. In any case no tender for Islamabad office was obtained. It was further stated that Procurement Committee comprising of Executive Director (Finance), Executive Director (Operation), General Manager (Law), General Manager (H.R) and Acting General Manager (Administration) prima facie with ulterior motives recommended Casa Bella, the lowest bidder. However, this committee did not point out to the Board of Directors objections regarding arithmetic check, applied by the Consultant and non- calling of fresh tenders for additional work. It was further that Chairman NICL accorded approval of work with mala fide intention. It is further stated that Board Members in 58th Meeting of Board of Directors held on June 28, 2009 approved the refurbishment cost of both Karachi and Islamabad offices to the tune of Rs,125 million in a clandestine manner while tenders had been invited only for 4th floor of office at Karachi. It is further stated in the Challan that investigation had not yet been completed as some documents were to be collected from the office of Messrs Nayyar Ali Dada and Associates and actual embezzlement of NICL office could not be worked out for the material supplied by the contractor which would be done upon receipt of report of the said appointed valuator. Messrs Nayyar Ali Dada and Associates submitted fresh evaluation report in respect of Islamabad. Evaluator in her report stated that she checked each item of furniture and Art Work for quality and price. She expressed her opinion that price bid for the furniture was reasonable and similarly for size of art work and price it was comparable to market price of similar art work.
5. Criminal Bail Applications Nos.1416 and 1430 of 2010. F.I.R. No,14 of 2010 was recorded on 22-11- 2010 at Police Station FIA Corporate Crime Circle, Karachi on a letter written by Secretary Commerce to Director General FIA. It was stated that office space in Dubai measuring 27000 sq. ft. had been purchased in July, 2009 at the rate of UAE Dirham 2700 per sq. ft. It was alleged that this was an exorbitant amount and it had caused loss to the national exchequer F.I.R. was registered under sections 409/420/ 109 of P.P.C. Challan was submitted on 6-12-2010. It was stated in the Challan that during investigation it transpired that the NICL on 13-7-2009 purchased 27,429 sq. ft. office space in Dubai at the rate of UAE Dirham 2700 per sq. ft. aggregating to amount of UAE Dirham 75.539 million equal Pak Rs,1.69 billion. Proposal for purchase of property floated in 55th meeting of the Board of Directors held on 9-4-2009 which was attended, among others by the present applicants. It was further stated that during investigation Messrs Land Sterling Dubai Chartered Surveyors were appointed for independent evaluation of property. It was further stated that upon receipt of fresh valuation by Land Sterling Dubai amount of embezzlement shall be ascertained.
6. Learned counsel for applicants read from 60th meeting of the Board of Directors which was attended by, amongst others Qamar Zaman Chaudhary, one of the Directors at that time. In Item 4 of the Minutes it was recorded as under:-- "ITEM NO.4: TO DISCUSS THE LATEST UPDATE ON THE PURCHASE OF REAL ESTATE IN DIFC AREA DUBAI-UAE Board briefed Mr. Qamar Zaman Chaudhary regarding the foreign currency accounts maintained by NICL for years which attracted almost negligible returns on its placement. Therefore, an investment of Real Estate in DIFC area, Dubai, UAE was approved by the Board. The said investment expectedly would fetch a return of. approximately 10% per year along with its capital appreciation. Mr. Qamar Zaman Chaudhary highly appreciated the Board regarding its decision.
The Board reviewed the successful finalization in detail on the purchase of Real Estate of Liberty House floors at DIFC area, Dithai, UAE and appreciated the Investment Committee's effort along with the concerned officer.
The Board also discussed in detail regarding renting the acquired Real Estate at DIFC, Dubai, the expected rental value per sq. ft. and to identify the service provider for handling the property. It was decided by the Board to finalize the discussed matter by the end of the month."
2. Learned counsel for applicants read from report of Messrs Land Sterling submitted on December 1, 2010 where the Surveyor has stated that on July 31, 2009 market value of purchased property was 72.5 Million UAE Dirham at the rate of UAE Dirham 2640 per sq. ft.
3. Criminal Bail Applications Nos.1417 and 1431 of 2010. In these cases F.I.R. No,21 of 2010 was registered on letter similarly written. Subject-matter was for purchase of a plot of land measuring 10 acres by 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 acre.
4. Learned counsel for applicants read from the Challan filed in Court on December 6, 2010. It was stated that land was purchased for NICL's Employees Housing Colony. It was further stated that Investment Committee of Board comprising of Chairman and two Members; one of them being applicant in Criminal Bail Application No,1417 of 2010, in its meeting held on 29-4-2009 resolved to enhance Real Estate Investment percentage ratio to 40 per cent of total investment Committee and on 8-6-2009 Investment Commission which included both the applicants besides Chief Executive of the Organization and another member of the Board after visiting the site unanimously approved it. Board of Directors in its 58th meeting held on 8-6-2009 unanimously approved purchase of 10 acres plot for NICL Housing Colony and further resolved that the price be negotiated.
Valuation was arranged from Mr. Amir Hussain of Ahmeds Associates which showed value to be Rs,92.5 Million. A letter was obtained from the E.D.O. Karachi showing rate of Rs,9.5 per acre.
Consequently, Investment Committee in its meeting held on July 1, 2009 formed a Negotiating Committee comprising of 3 Executives of the NICL. Finally in its 60th meeting held on 3-8-2009 Board approved recommendation for purchase of land at the rate of Rs,9 Crore per acre.
5. In the case of applicant in Criminal Bail Applications Nos.1429, 1430 and 1431 of 2010 it is also claimed that applicant is 67 years old and suffers from various diseases. A certificate from Shifa International Hospital Islamabad has been annexed with the applications where it is stated that he is likely to develop stress related aggravation of his medical conditions in the form of cardiac or cerebral schaemia. It is recommended that in 'case of any untoward symptoms he should be given immediate appropriate hospital care.,
6. In the case of applicant in Criminal Bail Applications Nos.1415, 1416 and 1417 of 2010 Criminal Miscellaneous Application No,14568-B of 2010 was filed in Lahore High Court. It was taken up on 24- 12-2010 and the following order was passed:-- "(6) Admittedly the petitioner was taken into custody on 12-10-2010, the medical report which was received in response to the order passed by this Court dated 23-12-2010, clearly depicts that the petitioner is suffering from ailment of serious nature and he requires immediate surgical intervention and if the same is delayed, the same could be hazardous to his life which could hamper the dictates of justice. Even otherwise it is established practice of the Superior Courts that in case of serious ailments, the Superior Courts have shown leniency and have afforded an opportunity of treatment to the litigant of his own choice, if the same was brought before them. In this case, the report of the Medical Superintendent, Services Hospital,. Lahore raises serious alarm and as such the relief sought for cannot be refuted in any manner keeping in view the guarantee of life and liberty as enshrined in the Constitution of the Islamic Republic of Pakistan, 1973. Even otherwise, when this Court confronted the Investigating Officer that what material he has collected so far against the petitioner to saddle him with the liability, he frankly conceded that there is no incriminating material available on record by which it could be estimated that the petitioner had acted or gained any benefit personally out of the whole scam. It is established principle of law that the liberty of any person cannot be curtailed for an indefinite period merely on the basis of bald allegations. Moreover, it is a basic principle of criminal jurisprudence that every person is presumed to be innocent unless and until proves otherwise.
(7) In view of above facts and circumstances seeking guidance from the dictum of law laid down by the Superior Courts in the esteemed judgments referred above, this Court is persuaded to grant ad-interim post-arrest bail to the petitioner till 20-1-2011, subject to his furnishing bail bonds in the sum of Rs,500,000 with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court, enabling him to avail treatment of his own choice. The petitioner is directed to appear before this Court on each and every subsequent date of hearing. Meanwhile, learned Standing Counsel is also directed to prepare the brief to assist the Court on the aforesaid date."
7. Mr. Anwar Mansoor Khan learned counsel for applicant in Criminal Bail Applications Nos.1429, 1430 and 1431 of 2010 submitted that all the properties are in possession of NICL, evaluation has been made in all the cases and evaluation made prior to the action as well as after action are in line with the amounts expended. He submitted that at best case against applicants are cases of further enquiry. He further submitted that applicants are not Executives of NICL. They have been non-executive members of the Board of Directors. He further submitted that FIA has resorted to pick and choose even amongst directors as the Board included the present Secretary Interior who participated in many meetings and even appreciated the action taken by the Board and he has not been included in investigation. He further submitted that no overt act has been alleged against applicant and nor has been proved.
8. Learned counsel for applicant further submitted that applicants are not public servants and, therefore, they could not have been charged in any case under the Prevention of Corruption Act. He submitted that it is not at all alleged that applicants got any financial benefits. Lastly, learned counsel submitted that applicants cannot be charged under Section 409 P.P.C. because none of the ingredients has been made out. Learned counsel relied upon Muhammad Tahir alias Tahir Jaffar v. The State (2010 YLR 2244), Abdul Rashid Nasir and others v. The State (2009 SCM R 517), Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), Shoukat Ilahi v. Javed Iqbal and others (2010 SCM R 966), Maulana Abdul Aziz v. The State (2009 SCM R 1210), Raja Shamshad Hussain v.
Gulraiz Akhtar and others (PLD 2007 SC 564).
9. Mr. Ashtar Ausaf Ali learned counsel for applicants in Criminal Bail Applications Nos.1415 and 1417 of 2010 adopted arguments of Mr. Anwar Mansoor Khan and besides emphasized observation of the Honourable Supreme Court made in Para 9 of judgment in Tariq Bashir's case (supra). In respect of medical grounds, he relied upon Zakhim Khan Masood v. The State (1998 SCM R 1065), Mian Manzoor Ahmed Watto v. The State (2000 SCM R 107), Malik Muhammad Yousafullah Khan v.
The State (PLD 1995 SC 58) and Muhammad Saeed Mehdi v. The State and 2 others (2002 SCM R 282). Learned counsel also referred to Minutes of 58th Meeting of the Board of Directors in respect of Casa Bella case and submitted that it was only a budgetary approval.
10. Mr. Mian Khan Malik learned Deputy Attorney-General made the following submissions:--
(i) NICL is a company entirely owned by the Government and applicants were Directors of this company and, therefore, they were public servants within contemplation of sections 21 of P.P.C. He referred to 9th Clause of it.
(ii) 58th Meeting of Board of Directors was held on June 28, 2009 and contract was awarded to contractor on 29-6-2009. It was done in undue haste and without following the rules.
(iii) Contract entered with Case Bella in August 27, 2009 is not signed by any person on behalf of NICL and yet work was entrusted to the same company.
(iv) Regarding Dubai property learned D.A.-G. placed on record an E-mail received from Muhammad Anwar Inspector FIA.
(v) Regarding land purchased in Korangi learned D.A.-G. referred to valuation certificate issued by some Ahmeds Associates on January 1, 2011 where they have stated that value of property to be Rs,70 crore. He also referred to valuation table provided by Mukhtiarkar Revenue where Mukhtiarkar stated that valuation as per table was Rs,4 crore per acre.
(vi) Regarding applicability of section 409, P.P.C. learned counsel submitted that they might not have personally benefited but they are guilty of criminal breach of trust.
(vii) Regarding medical ground learned Deputy Attorney General submitted that no proof of dangerous ailment has been provided.
(viii) Regarding order passed by the Lahore High Court learned DAG submitted that Lahore High Court has merely granted interim bail.
11. I have considered submissions of the learned counsel and have also gone through the record.
12. I have considered submissions made by learned counsel for the parties and have also gone through the record as well as case-law cited at the bar.
13. The applicants were Directors of NICL. They were Nominee Directors and had no executive position in the management hierarchy of NICL. They were not employees of NICL. Therefore, their role, if any, is to be seen in the context of their position as Directors. Criminal Bail Applications Nos.1415 and 1429 of 2010 relate to the matter which I may conveniently refer to as Casa Bella's case. Allegation is in three parts. Firstly, it is alleged that without issuance of tenders scope of the work was enhanced. Secondly, the amount expended on the work is grossly disproportionate to the work done and thirdly without signing agreement (draft dated August 27, 2009) the work was entrusted to Casa Bella. It is stated in the challan that Central Procurement Committee of NICL on 25-8-2009 (which committee comprised of 4 employees of NICL and none of the present applicants were member of that Committee) recommended case of Casa Bella. It is also stated that the Committee did not point out that no fresh tender had been called. It was in this state of knowledge that the Board approved award of contract to Casa Bella. Therefore, if anything in this regard it appears that it was Central Purchasing Committee which mislead the Board by not pointing out that fresh tender had not been called. It is nowhere available in evidence that Board deliberately ignored such requirement. As far as amount of contract being disproportionate to the work actually done is concerned, it is stated in the Challan that assessment was still underway and real value of the supplied material, furniture and painting was still in the process of being determined. It is further stated in the challan that Messrs Nayyar Ali Dada and Associates had been assigned work to workout fair value of the work done and report was still awaited. With the bail application Evaluation Report by Messrs Nayyar Ali Dada and Associates has been enclosed.
Report is as under:-- "EVALUATION REPORT The premises of N. I. C.L. located at Blue Area Islamabad, were inspected in details by our Senior Interior designer Saima Shah. Saima Shah has done her Masters in Interior Design from NCA and is an experienced professional in the field. She has been one of the designers in Serena Hotel project.
All the items of furniture and art work are quantified in the list attached.
Each item of furniture and art work was inspected for quality and price. Furniture quality is of good standard, largely Sheesham wood, imported beech wood and laminates of MDF has been used.
Standard of material used and workmanship are reasonably good. Some minor defects of chipping on corners were observed; apparently the manufacturing was done in Lahore and transported to Islamabad. Since the building does not have an adequate service lift, these defects were created during the transport of furniture. Generally, we feel that for the price paid the furniture standards are reasonable.
ART W ORK Most of the art work is done on canvas in oil paints and water colours. For the size of art work and price it is generally comparable to market price of similar art work."
14. According to the above report value of Art Work and other work done appeared to be commence rate with what had been paid by the NICL. In any case, it is still stated in the challan that it was yet to be determined. The challan further stated that they are awaiting report of Messrs Nayyar Ali Dada and Company. Therefore, at the best for the prosecution it is a case of further enquiry. Third aspect of the case of NICL is that it is alleged that draft of agreement was prepared and was signed by Casa Bella on 27-8-2009 and without it being signed by anyone from NICL the work was entrusted to Casa Bella. This was essentially executive function and non-executive directors cannot, in any case, be lumped with responsibility in this regard.
15.Result of the above discussion is that applicants in Criminal Bail Applications Nos.1415 and 1429 of 2010 are admitted to bail for a sum Rs, One Million each with P.R. bond and one surety each in the like amount to the satisfaction of the trial Court.
16. In the matter relating to Dubai's property (Criminal Bail Applications Nos.1416 and 1430 of 2010) at the time of hearing in the Court learned Deputy Attorney-General submitted a copy of letter under the title of "Progress report in the case of F.I.R. No,14 of 2010" of FIA Corporate Crime Circle, Karachi."
Inspector Muhammad Anwar is author of the letter. He stated that during the course of investigation in Dubai the progress made by him so far was as under:--
(1) According to Messrs JAJ Consultants Dubai UAE the average fair value of property was 2701 UAE Dirham per sq. ft.
(2) According to Messrs Hamptons International, Dubai it was 3200 UAE Dirham per sq. ft.
(3) According to Messrs Land Sterling Dubai Chartered Surveyors Dubai it was 2640 per sq. ft.
17. Even in the challan it is stated that Messrs Land Sterling have been appointed for independent evaluation of property. Report of Messrs Land Sterling has been annexed along with bail application. The report is dated December 1, 2010. Although the Interim challan was submitted on December 6, 2010, in the same- it is stated that it was still awaiting report of Land Sterling.
According to report by Messrs Land Sterling fair value was 2640 UAE Dirham per sq. ft. and what was paid was 2700 per sq. ft. The difference between value determined by Messrs Land Sterling and one actually paid is 2.27 per cent. Whether report of Messrs Land Sterling is acceptable to the prosecution or not and if it is acceptable whether difference of 2.27 per cent was caused by difference of opinion between two entities or whether there was mala tide intention behind the question, is yet to be determined. Therefore, essentially it is a matter of further enquiry.
18.Result of the above discussion is that applicants in Criminal Bail Applications Nos.1416 and 1430 of 2010 are admitted to bail for a sum Rs, One Million each with P.R. bond and one surety each in the like amount to the satisfaction of the trial Court.
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 Ratiq 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 assessment 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 assessment 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 here with revised valuation certificate, which may kindly be replaced with previous 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 ease this is a matter of further enquiry.
22. Result of the above discussion is that applicants in Criminal Bail Applications Nos.1417 and 1431 of 2010 are admitted to bail for a sum Rs, One 'Million each with P.R. bond and one surety each in the like amount to the satisfaction of the trial Court. In view of the above discussion, I do not think it necessary to refer other submissions made by the learned counsel and the learned Deputy Attorney General. All these six Criminal Bail Applications area allowed in the above terms.