NAZIM HUSSAIN SIDDIQUI, J- Mr. Iftikhar Ahmed Rasool, Secretary Ghee Corporation of Pakistan (Pvt)
Limited (hereinafter referred to as GCP) on 5th April, 1993 lodged FIR No.2 of 1993 under Section 409/34 PPC read with Section 5 (2) of Act-II 1947 against applicant Qamar Bughio Resident Director and other employees of GCP, Contractors, Surveyors and Security Officer of GCP.
2. The case of prosecution is that GCP seaports edible oils of various kinds from foreign countries for the manufacture of vegetable ghee/looking oil. The edible oil, so imported, is stored in various private oil terminals at Karachi port, belonging to private parties. For this purpose, G.C.P. Executes agreements with the concerned parties. In this regard an agreement dated 28-11-1991, was executed between GCP and Messrs Cosmopolitan Development Company (hereinafter referred to as CDC) of which Tahir Zahoor Ahmed is the, Managing Director. This agreement was extended upto 5-11-1993. Messrs General Inspectorate are the surveyors on behalf of GCP. Mr. Asadur Rehman is the Director of this Company. Under the terms and conditions of the agreement, M/s. CDC are bound to store edible oil. They are also responsible for its safe custody and protection against theft, leakage, contamination, and also for loss caused due to any reason. The surveyors are responsible for maintenance of record etc. On 10th February, 1993 Mr. Tahir Zahoor Ahmed, of CDC informed the applicant that 3,500 metric tons of RBD Palm oil had contaminated, and he at his own, undertook to compensate the GCP for the loss so caused. It is said that officials of M/s. General Inspectorate were not allowed to have the stock verification of GCP cargo on 10-2-1993.
The GCP was also informed that seal No. 31614, fixed at delivery valve of tank No. 1 of CDC, was missing and that they suspected shortage in the oil. An enquiry was ordered in the matter. It is alleged that the applicant and co-accused misappropriated GCP's oil about 4000 metric tons worth Rs. 72 millions. According to the prosecution, applicant Qamar Bughio. Mr. S.K. Imam General Manager (Commercial) GCP, Syed Abid Ali Shah Manager (Commercial) GCP, Mr. Munir Ahmed Dogar Security Officer posted at CDC oil Terminal, Mr. Imdad Ali Jumani Manager GCP Karachi Office, are involved in conspiracy, theft, removal of the said Government property. On completion of investigation the interim charge-sheet was submitted in the Court of Special Judge (Central-I), Karachi.
3. The bail application of the applicant was dismissed by learned Special Judge (Central-I), Karachi, vide order dated 15-6-1993.
4. Co-accused Asadur Rehman and Amin Hyder were granted bail by my learned brother Muhammad Aslam Arain, J.- at Karachi, vide order dated SIS'1993. Mr. Azizullah Shaikh learned counsel for the applicant pointed out that due to urgency co-accused S. Abid Ali Shah had directly taken his matter at Sukkur Bench before my said learned brother and he (S. Abid Ali Shah) was also granted bail vide order dated 22-6-1993. Likewise, co-accused Munir Ahmed, Imdad Ali & Tahir Zahoor got bail vide order dated 29-6-1993 passed at Sukkur Bench.
5. This bail application was filed at Karachi and by virtue of order dated 17- 6-1993 of learned Acting Chief Justice was placed before me. During the course of arguments, learned counsel were informed that it would be proper if this bail application was placed before said learned Judge, who had decided the bail applications of the co-accused, but both of them, particularly Mr. Azizullah Shaikh, insisted that it should be decided by me in view of the order referred to above.
6. For the proper appreciation of the contentions raised by learned counsel for the parties, it would be advantageous to reproduce the Clauses 2, 7, 17, 22, 23, 26 and 29 of the agreements mentioned earlier, which are as follows:- "(2) Before receiving the oil in said tanks, the contractors shall arrange cleaning of tanks at their cost, under the supervision and guidance of qualified surveyors to be appointed by the Corporation. The Corporation shall pay Surveyors charges. The Contractors shall be liable for contamination of any oil stored in the said tanks on behalf of the Corporation.
(7) The contractors shall indemnify the Corporation, for any loss caused to them due to non- performance of the terms of this agreement by the Contractors and due to any loss of Oil by theft, pilferage or any other reason. The contractors further undertake to compensate the Corporation for any such loss by making payment of value of the lost oil and for any other expenses on demand by the Corporation within the contract period.
(17) The contractors shall submit a final account of deliveries given and stocks remaining in land of each consignment as soon as delivery against such consignment is completed.
(22) The Contractors shall be responsible for the safety of oil while in storage during the delivery of the same. The contractors shall also be responsible for weighment at their terminal scales of loaded tank wagons, tank lorries and drums for the purpose of effecting delivery.
(23) The Corporation is the sole owner of oil stored in the land tanks of the contractors who have no claim whatsoever on it.
(26) The contractors shall furnish to the Corporation on every working day a report regarding stock in hand, delivery given out of each individual consignment in the form prescribed by the Corporation.
(29) Stock taking of Oil would be carried out after every three months for ascertainment of shortage/excess, if any, and the stock statement must be signed by all attending Surveyors, representatives of the Ghee Corporation and terminal operators of contractors. This statement would be treated as final and binding on all the parties. Such stock taking would however be without PREJUDICE to Corporation's right to verify physical stocks of oil in any terminal at any time with or without notice during currency of contract."
7. Mr. Azizullah Shaikh, learned counsel for the applicant contended that there is no evidence cm record to show that applicant, in any way, is guilty/involved in the conspiracy, theft, or unauthorised removal of the palm oil in question. He submitted that, on the contrary, it is evident that the applicant had taken all possible steps to recover the oil. Learned counsel specifically pointed out that the applicant kept informed the Chairman and Head Office, about the progress of the matter, and regularly received instructions from Head Office, which were strictly followed. He also argued that, under the circumstances, the applicant, instead of being shown as accused, should have been cited as a prosecution witness. These contentions have no force. There is sufficient evidence available on record to show his involvement in the commission of this crime.
The applicant, as Resident Director, was primarily responsible for Karachi affairs of the GCP and was aware about the theft much before the FIR was registered. Initially, he kept quiet, but had to disclose about the pilferage when the Head Office pressurized GCP Establishment at Karachi to accelerate the delivery of oil for use in GCP units. The pilferage was disclosed with a feigned story, which even a highly optimistic would be reluctant to accept it. On record there is a letter from General Inspectorate dated 4-2-1993. It was addressed to CDC. According to this letter, the surveyors wanted to physically check storage tanks containing GCP cargo in order to verify the exact quantity available therein; But CDC did not allow them to do so. Again on 9th February a written request was made to physically check the stock and this time the surveyors were asked to do the job on 13th February 1993. These facts are mentioned in the letter of General Inspectorate dated 10th February, 1993. Thereafter, the Contractor/Managing Director of CDC wrote letters dated 10th February, 27th February, and lst March, 1993 in which he undertook to compensate the GCP for the shortage mentioned earlier. Prima facie, it is, evident that the contractor had written above letters after it was known to every body that there was huge shortage in the stock. No action was taken by the applicant and the first letter he had written to CDC was dated 23rd February, 1993, wherein he asked CDC to make good the loss. He even absconded away and was arrested on 9-6- 1993, after NB.W was issued against him. He never asked CDC to supply statements in terms of Clauses 26 & 29 of the agreement. The applicant has attempted to use the said letters of CDC as trump card. It is contended on his behalf that mischief, if any, was done by the CDC/Contractor and for that the applicant is not responsible. It appears that these letters were procured to gain time and also to create a defence. The factual position is the Govt, property, worth Rs. 72 Million, has been misappropriated and inspite of above letters till date not a single pie has been recovered. Even after writing these letters the MD/Contractor of CDC had absconded away. No incident can be judged in its true perspective unless its real purport is made known, which, prima facie, in this case was to conceal the factum of misappropriation. The applicant deliberately adopted the policy of "go slow" and this establishes the connivance on his part in the commission of this crime. The story of contamination of said oil, on the face of it, is false. According to the report of laboratory, the admixtures in the tank were mainly molasses and not edible oil. This makes it clear that the oil was removed from the tanks and the tanks were filled with molasses and other liquids.
8. Mr. Azizullah Shaikh next argued that property was never entrusted o applicant; as such, Section 409 PPC is not attracted. There is no force in this lea. GCP within the meaning of Clause 23 of the agreement, referred to above, as the owner of the oil stored with the CDC and the applicant being incharge of CP office at Karachi cannot deny the entrustment of the property. Section 409 PC has not limited the mode in which a trust arises. It may be by virtue of a felicific order or by reason of a duty assigned to a public functionary. A public servant, having the dominion over property in his capacity as such, can be guilty of criminal breach of trust within the meaning of Section 409 PPC. A perusal of various clauses of the agreement, particularly those referred to above, shows that the applicant had full control over the oil in question in his capacity as a Resident Director.
9. Mr. Azizullah Shaikh learned counsel for the applicant cited (1) 1979 SCMR 9, Muhammad Fazal alias Bodi Vs. The State. (2) 1989 P. Cr. L.J. 2456 Air Marshal (Retd) Waqar Azim Vs. The State to invoke the principle of consistency and submitted that above-named co-accused have already been released on bail, as such, the applicant is also entitled to the same concession. In Fazal Din's case, the co-accused was attributed an identical role, as such, the principle of consistency was applied. In Waqar Azim's case, co-accused was already admitted to bail and on the basis of material available on record, there was no possibility of conviction of the applicant. Therefore, he was also released on bail.
In the case reported in PLD 1988 S.C. 84, Muhammad Azim Vs. The State, the Hon'ble Supreme Court observed as follows:- "After hearing the learned counsel in support of this petition, we are unable to agree with the submission that the learned Judge did not apply mind to all the facts and circumstances of the case. He also contended that Sher Din, who according to the allegations does not appear to have committed any lesser offence was allowed bail by the same learned Judge in an earlier order. After hearing him in this behalf we have come to the conclusion that the mere fact that a person who has been allowed bail in the same case (who in our view) should not have been allowed bail, does not justify grant of bail to a person who is otherwise not entitled to it. The argument based on the so-called principle of consistency is repelled."
In the case reported in PLD 1989 Peshawar 83, Jehanzeb Khan Vs. Muhammad Yaqub and another, the following was held:- "It may be borne in mind that the rule of consistency cannot be applied as an omnibus principle irrespective of the facts of each and every case. It is not such an inflexible rule which, in the ordinary course, should bind the hands of the Court while exercising its discretion fairly under Section 497 Cr. P.C. In fact, no hard and fast rules can be laid down and while following the aforementioned principle, facts of each case should be kept in view, and, unless found inevitably impulsive, should not be followed blind-foldedly."
10. It would be seen that the rule of consistency is not absolute and inflexible. It can be applied only when a person, on merits, is entitled to bail. If a thing is not permitted to be done directly, it cannot be allowed to be done indirectly. When a person is not entitled to bail, on merits, he cannot claim it solely on the principle of consistency. In fact, the principle of consistency has a very limited scope and while applying this principle, the fact of each case shall be the deciding factor for the grant or refusal of bail. In the instant case, the applicant on merits is not entitled to bail. Therefore, he cannot be admitted to bail on the above principle.
11. Mr. Zubair Qureshi, learned State counsel challenged the legality of the ing bail to co-accused at Sukkur Bench on the ground that the matter pertains to Karachi jurisdiction and was directly taken by the parties to Sukkur Bench without obtaining any specific order in this regard from the Hon'ble Chief Justice, as such, said orders are without jurisdiction. This is a technical objection and has no merits.
12. Mr. Azizullah Shaikh also contended that the applicant acted according to a legal advice tendered by a barrister and no illegal act was done by him. Suffice it to say that said legal advice was more in favour of the individuals than the State. In the advice, it was said that it was premature to assume that any crime was committed, although so was clearly from the circumstances.
Lodging of the FIR was also not advised on the ground that police would investigate every body right from Chairman to peon. This sort of legal advice does not absolve the applicant.
13. Mr. Azizullah Shaikh in the last half-heartedly argued that the applicant is ill and is entitled to bail on this ground. To substantiate this contention, no medical certificate has been filed alongwith the bail application. He, however, at the end of the arguments submitted a medical file of the applicant. Mr. Zubair Qureshi, learned State counsel, in reply, submitted that he is not in a position to argue on this point as no medical certificate has been supplied to him. He also pointed out that this ground was not taken before the trial court. The latest medical report in file is dated 29-6-1992 and it is from the Aga Khan Medical University Hospital Karachi. It shows that, in the year 1982 the applicant had a coronary artery bye-pass operation, and his general para-meters of health are fairly normal. Heart sounds are normal. Clinically there is no specific abnormality. Under the circumstances, presently he is not entitled to bail on medical ground. He however, may, if his physical health so requires, repeat bail application on medical ground before the trial Court.
14. In consequence, I do not find any merit in this bail application and the same is dismissed.