' Mr. Hakim Ali Zardari/Applicant herein through this criminal miscellaneous moved under section 3(3) of Ehtesab Ordinance, 1997, seeks pre-arrest bail in an Ehtesab Reference No,17 of 1997 under section 14(1) of Ehtesab Ordinance, 1997.
2. Facts, briefly stated, giving rise to this application are: that a piece of land measuring 4.5 acres in survey No,721 falling in Ayub National Park Rawalpindi was leased out by the Government of Pakistan to Pakistan Tourism Development Corporation (shortly described as P.T.D.C.) vide agreement of lease dated 24-9-1977. The period of lease was 30 years for annual rent of 32,670 rupees and a premium of Rs,6,63,400. This lease was made to set up a Tourist Village on the demised land. Pursuant to above, the lessee made an advertisement through press on 22-5- 1981/inviting interested parties to come forward and participate in the abovementioned project.
2-A. Pursuant to the above, M/s. Zardari Group Ltd. And Raja Muhammad Iqbal made offers.
Consequently, an agreement was concluded between P.T.D.C. And M/s. Zardari Group. The distinctive features of this agreement were:--
(i) P.T.D.C./first party agreed to contribute land as its share of capital valuing the sum as 18,00,000 (eighteen lacs) rupees and share amount of value of 100 rupees each. The P.T.D.C. Was given right to appoint two directors while the other group was to nominate the remaining six directors.
(ii) Messrs Zardari Group was to invest 54,00,000 (fifty four lacs) rupees to be contributed equally by its six Directors.
(iii) The land, noted above, was not to be sold, sublet, mortgaged or any loan was not to be taken against it. Messrs Zardari Group was to start the project and complete construction of a restaurant comprising of 50 rooms and shops within the period of three years commencing from the registration of the 'new venture; that yearly lease money was to be paid by Zardari Group. This agreement was executed on 29-11-1983. Consequently, a Private Ltd., Company under the name of Tourist Village Ltd. Was registered on 27-6-1983 with Registrar Joint Stock Company, Islamabad. On 18-5-1986, Messrs Morgah Hotel Ltd. Moved N.D.F.C. (Head Office at Karachi) for obtaining a loan of 85.789 million. The said loan was approved. Mr. Hakim Ali Zardari deposited the title deeds dated 9- 7-1989 and 10-7-1989, submitted the title deed relating to area in dispute. Applicant, therefore, obtained an amount of 3 million against a loan of LCY/GTF of Rs,85.789 million. No further disbursement was made.
3. As this new venture did not start its operations, the Board of Directors of P.T.D.C. Held a meeting on 1-12-1994 and resolved that P.T.D.C. Will disinvest its share in the Company. The aforesaid decision was conveyed to applicant on 14-12-1994. However, it was found that he, on 6-3-1994, had entered into an agreement with one Sh. Abdul Hameed Chairman Messrs Bilz (Pvt.) Ltd. Multan for the sale of 27 Kanals out of the aforesaid 4.5 acres of land for a sum of Rs,25 million (twenty five million). He had received Rs,5 million (five million) as earnest money. As this agreement was not concluded, so Mr. Hakim Ali Zardari refunded to Sh. Abdul Hameed two million which he had received from him. This happened on 19-1-1995. Thereafter, applicant disposed of his shares in Tourist Village (Pvt.) Ltd. To one Mr. Zafar Mahmood Khan in July, 1994 for a sum of Rs,2,45,00,000 (Two Crore and forty five lacs). The aforesaid vendee had paid him Rs,10,00,000 (Ten lacs) as earnest money on 18-9-1994. The copy of this agreement is annexed with Reference as Annexure 'M'. Upon the examination of these facts, one Safdar Ali, Deputy Director F.I.A. Recommended that the matter be referred to Chief Ehtesab Commissioner for necessary legal action. The Joint Secretary, Federal Ministry of Interior, conveyed the matter to Chief Ehtesab Commissioner.
4. Mr. Zardari so was arrested from his residence situated in Clifton Karachi by F.I.A. And was produced before a Magistrate who remanded him to police custody till 4-1-1997. Thereafter, he remained in judicial lock-up till he applied for grant of post-arrest bail by filing Criminal Miscellaneous No,39 of 1997. The High Court of Karachi vide order dated 8-1-1997 released him on bail with a direction to move Ehtesab Bench within seven days of its constitution.
5. In the above factual background, this application has come to this Court. Notice was issued to the other side and it was directed that the applicant/accused shall not be arrested provided he furnishes bail bonds in the sum of Rs,10,00,000 (ten lacs) with two sureties, each in the like amount to the satisfaction of registrar of the Ehtesab Bench. Since he was not able to comply with the above order, vide order dated 8-4-1997 he was directed to furnish prize bonds of Rs,20,00,000 (twenty lacs) with the Registrar of this Bench who was to deposit the same with some branch of Nationalized Bank and keep those in locker, obtain the receipt. It is stated that aforesaid order has been complied with.
5-A. Mr. Saleem Sehgal, Advocate Supreme Court, appeared on behalf of applicant and claimed bail on following grounds:-- ' Firstly; that the sale agreement was executed in 1994; that the Ehtesab Ordinance No,XXII of 1997 was promulgated on 1-2-1997; manifestly this Ordinance was not in field when agreement of 1994 had been enacted. On the strength of above facts, it was urged that Ordinance XXII' of 1997 was in defiance of Article 12(a) of the Constitution of Pakistan (1973). According to the learned counsel no criminal offence can be created with retrospective effect. Reference was made to rule laid down in Bhai Khan v. The State PLD 1992 SC 14 and Nabi Ahmad v. Home Secretary PLD 1969 SC 599. It was further asserted that this Court was competent to examine the vires of the Ordinance in the light of rule laid down in Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66.
' Secondly; that neither N.D.F:C. Nor P.T.D.C. Has moved the complaint to Chief Ehtesab Commissioner; that Agreement dated 18-9-1994 was executed by his wife Mst. Zarin Ara and not by the applicant; that the agreement was for the sale of 75% share of Mrs. Zarin Ara and other share holders in Tourist Village Ltd. And 25% of P.T.D.C. Were not sold; that P.T.D.C. In its 56th and 57th meeting agreed to sell their shares for a total price of 27 (twenty seven) lacs only; that out of the agreed price i,e, Rs,2.45 crores, only a sum of Rs,54,00,000 (Fifty four lacs) were paid while the remaining amount was payable by Buyer to N.D.F.C. It was further stressed that N.D.F.C. Had taken stock of this agreement and agreed to rescheduling time-frame of repayment of its loan. On the strength of the above facts, it was fiercely represented that the agreement of 1994 was contingent contract; that it did not create any enforceable covenant and so no offence has been committed by the applicant. Reliance was placed on Dalsukh M. Pancholi v. Guarantee Life & Employment Insurance PLD 1947 PC 185 Ashrafi (Pvt.) Ltd. v. Karachi Transport Syndicate Ltd. PLD 1973 Note 119 (Karachi) 184, and Banque Indosuez v. Muhammad Saleem 1987 CLC 795.
' Thirdly; that mortgagee had a right to sell the mortgaged property and that lease was between N.D.F.C. And Tourist Village Ltd. As juristic entities and the applicant was not individually liable to pay loan. Help was sought from decision dated 6-7-1994 rendered by our brother Munir A. Sheikh, J.
In Presidential Reference No,8 of 1990 titled "President of Pakistan v. Hakim Ali Zardari" (Annexure 'M').
' Fourthly; that the agreement of 1994 was bona fide commercial transaction and so it did not constitute any criminal liability.
' Fifthly; that the petitioner is over sixty years of age, had been elected as Member of National Assembly thrice; that there was no tangible evidence to connect him with the commission of any offence punishable under section 14(1) of the Ordinance. Reliance was placed on Nisar Ahmad v.
The State PLD 1971 SC 174 and Government of Sindh v. Raeesa Farooq 1994 SCM R 1283. The learned Special Prosecutor, on the other hand, opposed the application. He, inter alia urged as under:--
(i) that this application had been moved under section 498 of Cr.P.C. For grant of pre-arrest bail; that in such a move, the applicant had to allege that the investigating Agency was infected with some malicious tendencies; that the contents of this 4pplication did not show such allegations. In view of the above, it was submitted that the applicant was not entitled to the grant of pre-arrest bail. Assistance was taken from Jamaluddin v. State 1985 SCM R 1949 and Murad Khan v. Fazl- eSubhan PLD 1983 SC 82.
(ii) that the applicant had been returned as M.N.A. On three occasions; that he was holder of public office; that the Government of Pakistan had leased out a chunk of Park to P.T.D.C. With an object to set up a tourist village in order to attract foreigners; that the applicant coaxed the lessee to execute agreement dated 29-11-1983 and having armed himself with it, proceeded to enter into the agreement of 1994; that he received an amount of Rs,10,00,000 (ten lacs) rupees as down payment.
According to the learned counsel the object of lease was totally frustrated by the applicant; that not a single brick was moved to even begin with the process of building Tourist village and the applicant started to get money; firstly from Sheikh Abdul Hameed and then from Zafar Mahmood Khan. On the sequence of the aforesaid events, it was suggested that the applicant had from very inception to finish used his political influence, obtained loan from N.D.F.C. And thereafter received money from Zafar Mahmood. On these facts, he was clearly guilty of offence within the terms of section 3(d) and (e) of the Ordinance.
(iii) that subsection (3) of section 3 of Ordinance was materially different from sections 497 and 498, Cr.P.C. That section 3 postulated that holder of public office/accused of offence under this Ordinance/shall not be released on bail if there appears reasonable ground for believing that he has been guilty of such offence and that even if bail was allowed the applicant should be directed to furnish security in double the amount which was involved in episode.
We have heard the learned counsel for the applicant and the Special Prosecutor at length, perused record and attended to their rival contentions. Before proceeding further, we deem it necessary to note that the applicant was arrested from his residence in Karachi by F.I.A.; that he was produced before the Magistrate who remanded him to police custody till 4-1-1997 and he was allowed post- arrest bail by the learned Single Judge High Court Karachi on 8-1-1997 with the direction to move an application to this Bench within 7 days of its constitution. Pursuant to the aforesaid order, applicant has come to this Bench. Although this application has been moved for grant of pre- arrest bail yet it cannot be treated as an application for grant of anticipatory bail simplicitor. The principle for grant of post-arrest bail will also be useful for deciding the instant application.
Accordingly we find little substance in the objection of Special Prosecutor that this is an application for pre-arrest bail and should be decided on the basis of rule enunciated in Jamaluddin v. State 1985 SCM R 1949 and Murad Khan v. Fazl-e-Subhan PLD 1983 SC 82. Even otherwise, we find that all allegations of mala fides were attributed to Investigating Agency.
8. Next question, that falls for consideration, is as to whether section 3(3) .f the Ordinance is radically different from section 497, Cr.P.C. And so in this case grant of bail is an exception and not a rule. This point came up for consideration before the Supreme Court in Ch.Shujaat Hussain v.
State 1995 SCM R 1249 in the context of section 5(6) and section 12 of Offences in respect of Banks (Special Courts) Ordinance IX of 1994. We have examined the said provisions in juxta-position with the relevant provision of Ehtesab Ordinance and find that these are pari materia with each other.
So, the rule laid down in Ch. Shujaat Hussain's case 1995 SCM R 1249 is applicable to the facts of the case in hand. His Lordship Mr. Justice Saleem Akhtar (as he then was) while speaking for the Bench and after examination of relevant laws and precedents said:-- "a comparison with section 497, Cr.P.C. Will show that there is departure from the said provision. In this regard reference can be made to section 12 of the Ordinance which provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. Therefore, in cases of conflict between the provisions of the Ordinance and the provisions of the Code, the Ordinance will prevail. In Allied Bank's case, it was observed that the Ordinance being a special law conferring special power and jurisdiction on the Special Court and providing a special forum and procedure relating to the trial of scheduled offences, the Code will not affect any provision dealing with such special power, jurisdiction or procedure'. It may also be noted that section 5(6) is couched in a negative language. It is well- settled principle of interpretation of statute that where any provision couched in negative language requires as an act to be done in a particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal. In this regard the observations in the Allied Bank's case are relevant and further the learned Deputy Attorney-General has referred to certain passages from Maxwell's Interpretation of Statute and Craise leading to the same conclusion. At this stage I may clarify that there is a misconception which is some time expressed that if an act is provided to be done in a manner it should be done in that particular manner otherwise it will be illegal. This cannot be general rule for applying such provisions of law. There may be cases where directions contained in an enactment are directory and not prohibitory. But where the language used is in negative or mandatory term for performance of a particular act, only then it can be said that any act done or an order passed in breach of such negative or mandatory language will be illegal. Any act or order done in breach of affirmative language expressed in directory manner may not lead to the same result but this will entirely depend upon the facts and circumstances of the case and the object and language of the statute."
' The learned Judge went on to say: "The criterion for grant of bail as laid down by the Ordinance is not the quantum of sentence provided by P.P.C. The bailable or non-bailable nature of an offence on the basis of punishment is a creation of Code of Criminal Procedure. This part of the provision of section 497 being in conflict with the provisions of the Ordinance, the bail can be granted only if section 5(6) of the Ordinance is satisfied. In Allied Bank's case, while considering sections 497 and 498, Cr.P.C. With reference to section 5(6) of the Ordinance, it was observed as follows:-- 'In short, the difference appearing in section 5(6) of the Ordinance is the fetter on the Special Court's discretion to first find as a fact that there appear no reasonable grounds for believing that the accused is guilty of a scheduled offence, even where the punishment is not severe, such as death, imprisonment for life or imprisonment for ten years; leaving the condition contained in the second proviso to subsection (1) of section 497 of the Code' ."
' It was further observed:-- "It is, therefore, clear that section 5(6) of the Ordinance does not completely oust the applicability of section 497 of Code in respect of bails and though the rule of subsection (1) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection have been introduced in subsection (6) of section 5 of the Ordinance, which is couched in negative language, no express or implied ouster of the remaining provisions of section 497 of the Code can be spelt out from subsection (6) of section 5 of the Ordinance."
' While dilating upon section 497, Cr.P.C. In Allied Bank's case, it was observed that:-- "Whilst the provisions of the first and third provisos to subsection (1) of section 497 of the Code may be treated as not available to the Special Court or the High Court, such a situation would not apply to subsections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in subsection (6) of section 5 of the Ordinance. These provisions would not stand excluded whether expressly or by necessary intendment or implication. In the final analysis, it is not possible to subscribe to the view that section 5(6) of the Ordinance constitutes a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject."
' The learned Judge finally said: "Section 5(6) though not a complete Code provides fetter on the power of the Special Court to grant bail but the principles enunciated in section 497, Cr.P.C. And judicial authorities interpreting these provisions which do not come in direct conflict with section 5(6) can be pressed in service for grant of bail. A comparative study of sections 5(6) and 497 will show that bail can be refused if there appear reasonable grounds for believing that accused has been guilty of the offence. This is one of the grounds in section 497 for grant of bail. Therefore, to that extent there does not seem to be any conflict in both the provisions. We will thus consider whether there appear reasonable grounds for believing that the petitioner has been guilty of a scheduled offence."
9. We are, thus, of considered view that section 3(3) of the Ordinance is not in conflict with section 497, Cr.P.C. That although this places some restriction on the power of this Court to grant bail, yet circumstances mentioned in section 497, Cr.P.C. And enunciated by the superior judiciary for grant of post-arrest bail can be pressed into service for deciding the applications filed under section 3(3) of the Ordinance.
10. Before we turn to merits of the case it.Is necessary to reiterate the rule' laid down in Ali v. Crown PLD 1952 FC 71. His Lordship Mr. Justice Cornelius, the Judge of Supreme Court (as he then was) while approving the saying of Mr. Justice Ellis, J. Said:-- "It is unnecessary to enter upon an examination of the facts and circumstances of these three cases as the ratio decidendi has been, in my opinion, correctly appreciated by Mr. Justice Ellis in his judgment where he has observed as under:-- 'I think it is not enough to show that there is reason to suspect that the articles found have been stolen or fraudulently obtained. Something more is required and that something is 'reason to believe', 'belief' being a conviction of the mind arising not from the actual perception or knowledge but by way of inference of evidence received or information derived from others. It falls short of an 'absolute' certainty because the accused, in accounting for his possession, may be able to show that the grounds upon which it is based are unsubstantial'."
' The aforesaid rule was followed by the Supreme Court in Ch. Abdul Malik v. The State PLD 1968 SC 349, Nisar Ahmad v. The State PLD 1971 SC 174 and Government of Sindh v. Raeesa Frooq 1994 SCM R 1283.
11. Guided by above rule, it is clear to us that, the first agreement was executed by Government of Pakistan in favour of P.T.D.C. On 24-9-1977; that agreement between Zardari Group and P.T.D.C. Was made on 29-11-1983, wherefrom the Tourist Village Ltd. Came into being; that the applicant took loan from N.D.F.C. To the tune of Rs,3 million (three million) which has now swelled up to Rs,1,40,00,000; that this loan has not so far been repaid; that the applicant thereafter entered into an agreement with Sheikh Abdul Hameed in 1994, obtained earnest money but refunded it to the aforesaid person and finally executed an agreement with one Zafar Mahmood in 1994 from where he received earnest money.
We further find that in this whole episode, the functionaries of P.T.D.C. As well as of N.D.F.C. Did not raise little finger and behaved with passive timidity. It was after the fall of the Government that this process was initiated under Ehtesab Ordinance. Tentatively speaking, we find that the applicant so has made out a case for grant of bail. It is on record that applicant was arrested by investigator, was released on bail by Karachi High Court on 8-1-1997 with the direction to move an application to this Court. So, he has come to this Court and deposited cash security in the sum of Rs,20,00,000 (Twenty lacs) in compliance with the order of this Court dated 8-4-1997. So, having granted interim bail, we find no circumstances to cancel it. It is settled that the principle pertaining to cancellation of bail are materially different from the grant of bail.
1-2. As a result of the forgoing discussion, we are inclined to confirm our order dated 2-4-1997.
However, we are persuaded to change the amount of bail bond consonance with the facts of the case noted above. The applicant had secured loan of Rs,30,00,000 (rupees thirty lacs) from N.D.F.C.
As Managing Director of Morgah Hotel Ltd; has so far not repaid it and same, so, has swelled to 1,40,00,000 (rupees one crore and forty lac) till 1996 as stated by parties; that the applicant also received earnest money from the last vendee; that the project of Tourist Village is still in papers; that the money, so involved in this Reference, is almost more than Rupees one crore; that section 3(4) of Ordinance, 1997 postulates that the amount of bail shall be fixed with regard to gravity of charge against such person and where such charge specifies an amount, it shall not be less than twice, Similar edict in Banking Ordinance, 1984 was not meticulously adhered to by the Supreme Court in Ch. Shujaat Hussain's case 1995 SCM R 1249. Keeping in view the above principle and the rule of accountability embodied in this Ordinance, we are of the opinion that cash security of Rs,100,00,000 (One Crore rupees) shall serve the ends of justice. We accordingly, direct applicant to furnish above cash security to Additional Registrar of this Bench within three weeks of this order.
This shall be inclusive of the amount of Rs,20,00,000 (Rupees twenty lacs) already deposited by him under our order dated 8-4-1997. Additional Registrar shall deposit this amount in the bank where already deposited amount lies. This period was fixed by this Bench with the consent of the learned counsel for the applicant. This applicant shall also surrender his Passport forthwith. This application so stands disposed of in above terms: ' While parting with this order we would like to add that findings in this order are purely tentative in nature and shall have no determinative value on the fate of this reference. The points urged with regard to vires of the Ordinance and other points pertain to deep evaluation of case and cannot be decided at this stage lest their decision may pre judice either party.