' This order shall dispose of the following connected bail matters:--
(1) Perwaiz Iqbal v. The State (Criminal Miscellaneous No,2745/B of 1994).
(2) Ateeq-ur-Rehman v. The State (Criminal Miscellaneous No,2524/B of 1994).
(3) Muhammad Aslam Mirza v. The State (Criminal Miscellaneous No,3005/B of 1994).
(4) Bail matter on behalf of Messrs Muhammad Tufail son of Ch. Mehar Din, resident of Railway Road, Shakargarh, District Narowal, and Abdul Manaf son of Shah Wali Khan, resident of Makowal, Tehsil Kharian, District Gujrat, in re: "Ateeq-ur-Rehman, etc. v. The Director, F.IA., Lahore" (Composite Writ Petition No,7968 of 1994) as they arise out of the same F.I.R. No,21 of 1994, dated 7-5-1994 under section 109, 409, 420, 468 and 471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, registered at Police Station State Bank Circle F.IA. At the behest of Federal Investigating Agency.
2. Briefly stated consolidated facts of the case, as contained in the petitions, the reply submitted thereto and as stated by learned counsel for both the parties during the course of arguments, out of which these bail matters have arisen, are that Perwaiz Iqbal petitioner who is Managing Director of Messrs Trade Lines, Lahore and Muhammad Tufail Director of the concern offered a bid for purchase of 51% shares owned by the Federal Government in Suraj Ghee Industries, Sheikhupura, for an amount of Rs,4,15,78,328 which have been offered for sale through Privatization Commission.
Before offering the bid, they obtained an agreement in writing from Muhammad Aslam Mirza petitioner who is the ex-owner of the aforementioned industrial concern whereby he had relinquished his right of first purchase in lieu of payment of rupees six lacs out of which rupees two lacs is said to have been paid to him.. After the bid was offered, it was accepted by the Privatization Commission and letter of intent was issued on 20-7-1992 requiring 26% of the aforementioned amount rupees ten lacs had been deposited by Messrs Manaf Anwar & Co. Through Abdul Manaf petitioner, a Director. Out of the balance, an amount of rupees seventy-seven lacs was paid by Ateeq-ur-Rehman petitioner, who is an ex-M.PA., through cheque issued on 20-7-1992. Rest of the amount was paid by Messrs Perwaiz Iqbal and Muhammad Tufail petitioners.
' Subsequently, an audit report was obtained wherein loss of rupees seven crores was shown instead of loss of rupees six lacs which was shown at the time when the bids were invited. Making the said audit report as basis, without making any reference to the Federal Government, or the Cabinet as required by rules, the said concern was sold by the Commission in favour of Messrs Trade Lines for a negotiated amount of Rs,1,15,64,928 only. Management of the concern, stocks lying in the premises and control of funds was handed over to the new purchasers on execution of agreement although the rights of ownership had still not been transferred to the purchasers. The petitioners are alleged to have removed all the stocks within a short span of time worth about two crores of rupees, although the same were pledged with the Bank. Huge funds amounting to about 20 million rupees were withdrawn from the accounts of the Company and the employees gratuity funds and are alleged to have been mis-appropriated.
3. Malik Muhammad Qasim, Chairman of the Federal Anti-Corruption Committee, on coming to know of the above-referred facts, informed the F.IA. Who after holding of preliminary inquiry registered the aforementioned criminal case against all the petitioners and officials of the Privatization Commission including one Dr. Muhammad Arif, who was the member accounts in the Privatization Commission. During investigation of this case, Ateeq-ur-Rehman petitioner was arrested and was allowed interim post-arrest bail by this Court in Criminal Miscellaneous No,2524/B of 1994. Similarly, Perwaiz Iqbal and Muhammad Aslam Mirza have also been admitted to interim post-arrest bail in Criminal Miscellaneous No,3005/B of 1994. Messrs Muhammad Tufail and Abdul Manaf petitioners have been admitted to interim pre-arrest bail in Writ Petition No,7968 of 1994.
4. Messrs Rafiq Ahmad Bajwa and Shaukat Rafiq Bajwa, Advocates have appeared on behalf of the petitioners in Writ Petition No,7968 of 1994, Criminal Miscellaneous No,2524/B of 1994 and Criminal Miscellaneous No,2745/B of 1994. Kt M. Sultan Ahmad, Advocate has appeared on behalf of Muhammad Aslam Mirza petitioner in Criminal Miscellaneous No,3005/B of 1994. Messrs Shahzad Jehangir Advocate and Faqir Muhammad Khokhar, Deputy Attorney-General of Pakistan have appeared on behalf of the State and other respondents in all these petitions.
5. At the very outset, Mr. Rafiq Ahmad Bajwa, Advocate, learned counsel for Ateeq-ur-Rehman, Perwaiz Iqbal, Muhammad Tufail and Abdul Manaf petitioners, has pointed out that Writ Petition No,442 of 1994 seeking quashment of the F.I.R. Wherein the petitioners are seeking bail, has already been admitted to regular hearing by a learned Single Judge at Rawalpindi Bench of this Court. He, hence prays that Writ Petition No,7968 of 1994 may also be admitted to regular hearing and both the petitions may be ordered to be heard together in order to avoid conflict of judgments. He, however, prays that so far as it relates to the prayer for grant of pre-arrest bail to Messrs Muhammad Tufail and Abdul Manaf petitioners, may be heard alongwith other connected bail applications today. Learned counsels appearing for the respondents state that they have no objection to the admission and decision of the Writ Petition as prayed for by learned counsel for the petitioners. Resultantly, Writ Petition No,7968 of 1994 is admitted to a regular hearing. Notice.
Learned counsel for the respondents accept notice on their behalf, therefore, the case is complete, and, hence formal notices need not be issued to the respondents. It is directed that the writ petition to the extent of claim for grant of pre-arrest bail shall be heard alongwith other bail applications referred to above, today, whereas rest part of the writ petition, shall be decided alongwith the connected Writ Petition No,442 of 1994. The Office is directed to place both the matters to the above extent before Honourable Chief Justice for obtaining of appropriate orders in this behalf so that both the matters are heard together by one and the same Bench, which may be nominated by his Lordship.
5-A. On merits of the case, learned counsel has contended that the petitioners are entitled to the grant of bail as Writ Petition No,442 of 1994 seeking quashment of the F.I.R. Has been admitted to a regular hearing and, therefore, it is a case of further inquiry and as such the case of all the petitioners falls under the proviso of the provisions of section 497, Cr.P.C.; that Ateeq-ur-Rehman petitioner is an ex-M.P.A. Of Punjab Assembly and has got nothing to do with the transaction in question as he is neither a purchaser, a partner, a guarantor, a Director, an Attorney nor is there an iota of evidence which could connect him with the commission of the offences as are alleged to have been committed by him; that Perwaiz Iqbal, Muhammad Tufail and Abdul Manaf petitioners are bona fide purchasers for value of Government shares in the industrial concern, which have been offered for sale and it being an ordinary and normal transaction, it cannot be said that they frauded/cheated either the Government or the Privatization Commission; that in the audit report obtained at the behest of Privatization Commission itself, the value of the concern after having been determined afresh was proved to be much lower than it was represented at the time of bid as in the said report instead of a loss of rupees six lacs which was disclosed at the time of offering of bid a loss of seven crores had been discovered, hence the Privatization Commission considered it proper to sell the concern for a consideration of Rs,1,15,64,928, which amount cannot be said to be unreasonably inadequate reflecting a fraudulent intention transaction, hence, the mens rea being absent in this case, it cannot be said that the purchasers are liable under the criminal law; that the petitioners have already filed a civil suit seeking a decree for declaration, injunction and for recovery of damages on account of loss suffered by them, much prior to the registration of criminal case, which is hence nothing but a counterblast to the said civil suit, wherein stand taken by the Government is that the dispute is required to be referred to the Arbitration, therefore, dispute between the parties being of a civil nature and already pending adjudication before a Civil Court, criminal case could neither have been registered nor any investigation on the basis thereof can continue as the same are illegal, mala fide and without jurisdiction; that the allegations regarding removal of pledged goods are also subject-matter of the proceedings before the learned Company Judge, between the petitioners and the Bank, in which proceedings applications for registration of criminal case against the petitioners under the provisions of Companies Ordinance have been filed by the Bank, which offences are bailable and are not cognizable, therefore, on the basis of same allegations, no separate criminal case could have been registered and investigated against the petitioners; that contents of the F.I.R. Do not constitute offences as mentioned therein and in absence of any allegation or evidence of entrustment, at the most offence under section 420, P.P.C. Is made out, which offence is bailable, and, hence, all the petitioners are entitled to the grant of bail, which relief has illegally been refused to the petitioners by the learned Special Judge, Anti-Corruption, Lahore. In support of his contentions, learned counsel has placed reliance on the following cases:--
(1) State v. Shakoor Hashim PLD 1960 Kar. 926,
(2) Muhammad Mahboob v. Ghulam Qadir PLD 1962 Kar. 748,
(3) Khaliq Hussain v. Crown PLD 1956 Kar. 212,
(4) Arab Mian v. King PLD 1942 Kar. 284,
(5) Abdus Salam v. Crown PLD 1952 Dac. 354,
(6) Abdul Karim v. Crown PLD 1951 Lah. 342,
(7) Julian H. Dinshaw v. Ahmad Ali 1968 P Cr. L J 890,
(8) Abdul Ghafoor v. Crown PLD 1951 Dac. 56,
(9) Wahid-ud-Din v. Crown PLD 1956 Kar. 489
6. Kh. M. Sultan Ahmad, Advocate, learned counsel for Muhammad Aslam Mirza petitioner has contended that the petitioner is 72 years old and is suffering from serious heart ailment namely "Ischaemic heart disease" and "diabetes Mellitus" and had met the first heart attach in the year 1969. Of late he was admitted in the Services Hospital, on account of the aforementioned ailments on 10-7-1994 and was discharged on 9-8-1994. He being a sick and infirm person, his case falls under the proviso to section 497, Cr.P.C. And that the petitioner is an ex-owner of Suraj Ghee Industries and he has relinquished his first right to purchase for a consideration of rupees six lacs out of which only an amount of rupees two lacs has been paid to him and rupees four lacs are still due and as has been taken as a Director in the concern after the transaction in question, he cannot he considered to be a party to fraud or misappropriation of funds, if any, therefore, he is, entitled to concession of bail even on merits. Reliance is placed on the following cases:--
(1) Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182,
(2) Rana Muhammad Amin v. The State PLD 1978 Lah. 78,
(3) Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 282,
7. As against the above arguments, Mr. Shahzad Jehangir, Advocate learned counsel for the respondents assisted by Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan has contended that interim pre-arrest bail in this case was obtained by Messrs Muhammad Tufail and Abdul Manaf petitioners by misstatement of facts before the learned Single Judge of this Court as is clear from the order, dated 14-7-1994 passed in Writ Petition No,7968 of 1994 wherein it has been mentioned to have been pleaded that the said petitioners were not named in the F.I.R. Although factual position is otherwise. Hence, contends that conduct of the said petitioners being mala fide they are not entitled to the grant of discretionary relief from this Court; that it is a case of complicated fraud committed by the petitioners in conspiracy with each other as well as the officials of Privatization Commission including Dr. Muhammad Arif, Senior Officer of the said Commission, as a result whereof public property worth crores of rupees has been grabbed by the petitioners, on payment of petty amount and stocks as well as funds worth 20 millions of rupees which includes trust funds, have been misappropriated by them. The case is still under investigation. The prosecution is possessed of evidence on the basis whereof it stands established that there are reasonable grounds to believe that all the petitioners are guilty of commission of very heinous offences; that out of the sale price deposited till 20-7-1992, Ateeq-ur-Rehman petitioner who acted as a God-father in weaving the whole Cab-web of this fraud, paid rupees seventy-seven lacs through a cheque, dated 28-7-1992, he is a co-signatory of account of Messrs Trade Lines maintained in Punjab Bank, Main Branch, Lahore. He signed an authority letter in favour of Mr. Fazil Mirza and attested his signatures on the said authority letter whereby he was authorized to take over Rs,4,88,582 share (51%) from Punjab Bank on behalf of Trade Lines. He was nominated as representative of Suraj Ghee Industries, with P.B.M.A. And was also a member of the Committee which represented P.B.M.A. To finalize the Standard Contract Forms with P.O.R.M., a Malaysian delegation therefore, it is clear that although in papers he has not been shown as a purchaser yet he is major beneficiary of the tainted transaction; that a letter from Muhammad Aslam Mirza refusing to purchase the concern was obtained by the bidders and thereafter he was made as a Director in the concern, hence is a beneficiary of the transaction; that admittedly the ownership rights have still not been transferred to Messrs Trade Lines in whose name the concern was purchased nor the approval for sale of the concern for such a petty amount, had been obtained from the Cabinet, yet management, and control of the concern as well as the funds and stock, was handed over to the purchasers by the Privatization Commission although they had no lawful authority to do so, as the concern as well as the said stock and funds were a trust with the Commission on behalf of the Government and as some of the accused person are the Government Servants, the case has rightly been registered under the provisions of section 406/409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 alongwith other offences; that pendency of the litigation before the Civil Court and the learned Company Judge does not in any way absolve the petitioners from their criminal liability and in fact will not have any negative effect upon registration of the case or continuation of the investigation proceedings therein, as civil litigation has been initiated by the petitioners themselves, which may be a precautionary measures so that their fraud may not be unfolded and the proceedings before the learned Company Judge are pending between the Bank and the petitioners and therefore, are rather corroborative evidence to the effect that the petitioners have misappropriated the Stocks lying in the concern; that the offences constituted under the Companies Ordinance are the creation of the said statute and, therefore, merely because the petitioners are being proceeded against for commission of the offences under Company Laws will, not absolve them from their liability under general criminal law and that ailment of Muhammad Aslam Mirza is not that serious on account of which he may be granted bail in this case of very heinous and sensitive nature.
Hence, none of the petitioners are entitled to grant of bail. In support of his contentions, learned counsel has placed reliance on the following cases:--
(1) Said Wali v. Yaqoot Khan and another PLD 1983 SC 440,
(2) Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182,
(3) Rana Muhammad Amin v. The State PLD 1978 Lah. 78,
(4) Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412,
(5) Muhammad Haleem Chohan v. The State 1980 P Cr. L J 128,
(6) Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621.
8. I have considered the arguments addressed by the learned counsel for the parties, have perused the record as well as the case-law cited at the Bar. The law declared in cases cited by learned counsel for both the parties is to the effect that in cases of further inquiry the accused are entitled to the grant of bails of right; that in case the accused person is sick or infirm he is entitled to the grant of bail; that if the dispute is of civil nature then ordinarily criminal proceedings should not continue and that each case where investigation is going on is of further inquiry but in each case it cannot be said that merely because the allegations leveled against the accused persons are still under investigation, his case falls within the proviso to section 497, Cr.P.C. And that in cases of complicated fraud even probabilities and circumstantial evidence can be taken into consideration as a piece of incriminating evidence.
' There is no cavil with the propositions of law referred to above, therefore, it is not necessary to discuss the said cases in detail suffice it to say that each bail application has to be decided on its own merits of course keeping in view the principles of law as laid down in the aforementioned judgments.
9. Admittedly, Messrs Perwaiz Iqbal and Muhammad Tufail are the Directors of Messrs Trade Lines who offered as bid of Rs,4,15,78,328 to purchase the industrial concern namely Suraj Ghee Industries, Sheikhupura. Terms of the auction do not reflect that in case, in the subsequent audit report, worth of the concern is found to be less than the one which was disclosed and visible at the time of bid, it shall be sold to the bidder by negotiation at a lesser price. Even the agreement executed between the parties does not reflect any such intention, therefore, it becomes crystal clear that the Privatization Commission had absolutely no lawful authority to sell the Unit through negotiation at a lesser price to a bidder, who had offered much higher price and that too after his offer had been accepted and hence the contract was complete. It is an established principle and practice that in case where the public property is to be disposed of, it shall have to be disposed of through open auction. If the bid is not approved and efforts made again and again through competitive auctions do not bring adequate and reasonable price, it is then the method of negotiation is adopted and that too with a view to improve the price. In the case in hand, strangely enough, the property has been agreed to be sold at about 1/4th of the bid amount. It is admitted that neither any ownership rights had been transferred to the purchasers nor approval had been granted by the Cabinet yet possession and control of the concern alongwith stocks and funds was handed over to purchasers by the Privatization Commission who at the best was a trustee thereof and could not have divested the Federal Government, of its ownership rights till then.
10. Pendency of proceedings before Company Judge rather prima facie proves that the said stocks have been removed and the presumption would be that they must have been removed by the accused persons to whom the possession of the concern had been delivered. Therefore, it is a case where prima facie it is established that public property worth crores of rupees have been grabbed and huge amount out of public and trust funds have been misappropriated having been withdrawn and not accounted for. All the petitioners are conscientious beneficiaries of the transaction and actions referred to above and in the ordinary course of events, it cannot be said that a person who is getting a benefit of crores of rupees does not know the origin, the source and the consequences and justification or otherwise thereof.
11. Ateeq-ur-Rehman petitioner although is not a co-purchaser in papers but the evidence collected by the prosecution referred to above does connect him with the transaction and he is proved to be rather a major beneficiary out of transaction in question. Merely because he is a political figure will not lessen the gravity of the offence and will rather aggravate the same. The investigation is still going on and the case is at preliminary stage. There is nothing on record on the basis whereof it could be said that proceedings have been initiated in a mala fide manner or the same are without jurisdiction. Information having been received by the F.I.A. Inquiry having been held and criminal case having been registered thereunder all the accused persons have been named and a specific role has been attributed to them.
12. It is admitted position that at the time of handing over of possession and control of the concern the stocks, the funds and ownership right had not been transferred to them. Approval for the transaction had also not been sought from the Cabinet as was prerequisite under the ground rules on the subject. Disposal of the concern, including the stocks lying therein and the funds pertaining thereto, were a trust with the Privatization Commission. Consequently, the Commission could neither have handed over the possession of the premises to the purchasers nor of the stocks as well as the funds and at any rate neither the Commission nor the purchasers had any right to remove or withdraw the stocks as well as the funds. Their status at that time was at the most that of trustees. Hence, it cannot be said that there was no entrustment or that the offences under section 406/409, P.P.C. Are not constituted.
13. The dispute as raised in this case is not of a civil nature. The civil suit has been filed by the petitioners themselves, therefore, it cannot be said that the pendency of that suit is a bar to the registration of the present F.I.R. Or the investigation thereunder as a very serious allegations of grabbing of public property and embezzlement of public funds and trust funds have been levelled against the petitioners in support of which allegations substantial evidentiary material has also been collected by the prosecution, which if taken into consideration alongwith the probabilities does prima facie show that there are reasonable grounds to believe that the petitioners are guilty of the offences alleged to have been committed by them.
' Merely because Muhammad Aslam Mirza is suffering from heart ailment or is an aged person is hardly a circumstance to absolve him of a criminal liability of the type in hand. There are lot many people who are suffering from heart ailment, diabetes, etc. And are living a happy life. As disclosed by the learned counsel himself the petitioner met the first heart attack in the year 1969 since then he is leading a normal life may be with use of medicines. Though he was admitted to hospital on 10-7-1994, yet was discharged on 9-8-1994. Hence, it cannot be said that the ailment or infirmity is of such character that he should be admitted to bail pending investigation of a serious case wherein public property worth crores of rupees is alleged to have been grabbed and millions of rupees out of public and trust funds are alleged to have been misappropriated by all the petitioners in conspiracy with each other and the Government officials. He is also a beneficiary of the transaction in dispute and but for his cooperation it could not have taken place at all, therefore, he is equally liable.
14. Looked the, case from another angle judicial notice can be taken of the events that in the society tendency to grab public property and squandering of public funds has increased to a cancerous maganitute. It is high time, therefore, that the grabbers of public property and squanderers of public funds are dealt within an iron hand. It is hence duty of all the organs of the State including the judiciary that while dealing with such like cases particularly in exercise of discretionary jurisdiction, the volume and extent of injury to the society both materially and to the moral fibre thereof, is also kept in view. A person who grabs the public property and squanders public funds commits a very heinous crime which is not less than an offence committed by a murderer who murders an individual, whereas a grabber and the squanderer kills the whole society. Consequently, all the petitioners have not been able to make out a case for grant of bail to them as of right or by exercise of discretion in their favour and as there are reasonable grounds to believe that all the petitioners are guilty of offences alleged to have been committed by them, a majority whereof fall within the prohibitory clause of section 497, Cr.P.C. Hence they are not entitled to the grant of concession of bail in this case, at this stage.
15. Resultantly, Criminal Miscellaneous Nos.2745/B of 1994, 2524/B of 1994, 3005/B of 1994 as a whole and Writ Petition No,7968 of 1994 to the extent of grant of prayer for pre-arrest bail, are dismissed, as a consequence whereof ad interim bail granted to the petitioners automatically stands withdrawn. Any observation made and finding rendered in this order is for the purpose of decision of the bail matters alone.
16. In view of my observations contained in paragraph 14 of the order, a copy of this order shall be sent to the Principle Secretary to the Prime Minister of Pakistan, to be brought to the notice of the Honourable Prime Minister, as well as the Ministry of Justice, Islamabad, for considering the necessity and viability of making of necessary amendments in the relevant laws regarding bail and sentence for the offences of the nature referred to above, which may commensurate with the gravity of the offences.