1. Granted subject to all just exceptions.
2. The applicant is involved in Crime No,17 of 1996 registered at F.I.A./S.B.C., Karachi for the offence under section 409/109/34, P.P.C. Read with section 5(2) Act II of Prevention of Corruption Act, 1947.
1. Now he has applied for anticipatory bail. The F.I.R. Was lodged on behalf of the State by Inspector Illahi Bux Tunio F.1.A./S.B.C., Karachi which reads as under:-- "Consequent upon an inquiry instituted in F.I.R./Crime Zonal Office, Karachi vide No,19 of 1996 conducted by Assistant Director Khaliquz Zaman of F.I.A./CC-I, Karachi regarding procurement of 3rd convertor for Steel Mills Corporation, Karachi it is revealed that Lt.-Gen. (Retd.) Sabeeh Qamaruzzaman while posted as Chairman Pakistan Steel Mills Karachi in the year 1992/1993 in collusion with Habibullah Siddiqui Director (Procurement) fraudulently and with criminal intent manipulated the purchase of 3rd convertor which was not required. In this connection they invited the services of Messrs Mercury Corporation owned by one Messrs Asif of Karachi with whom he came in contact during his visit of Russia and whom the contract was awarded contrary to -the settled rules and procedure meant for such issue. In this regard a sum of Rs,135 million was paid to Messrs Mercury Corporation as mobilization advance against bank guarantee in 3 installments with effect from 30-8-1994 to 12-10-1994 but the contractual commitment was not fulfilled and amount was misappropriated without any material progress. The accused Asif of Mercury Corporation who did not deal in machinery and being the sole garment dealer exported from Pakistan to Russia on barter system and was facing some problems with the realization of their export bills and the Russian Government was inclined to make payment in the shape of machinery/hardware. The accused Sabeeh Qamaruzzaman facilitated the accused Asif of Mercury Corporation by .Placing an order of 3rd convertor for realization of his outstanding export bills from Russia. Subsequently accused Sajjad Hussain.During his posting as Chairman Pakistan Steel Mills Corporation, Karachi also availed the opportunity and facilitated him in the same manner by extending advance payment of Rs,40 million without any lawful justification with the connivance of Director (Finance) S.N. Abbasi and other officers of P.S.M.C. Karachi and thereby used the funds of Pakistan Steel Mills for their pecuniary advantage and for the advantage of co-accused Asif of Mercury Corporation. Thus, a total loss caused to the Pakistan Steel Mills is more than 175 million.
2. ' It is thus established that the accused persons being employees of the Pakistan Steel Mills Corporation and employees of Federal Government and custodian of the public funds willfully and deliberately by abusing their official position as such public/Government, servant in active collaboration with accused Asif of Messrs Mercury Corporation, Karachi committed the act of criminal breach of trust to the tune of Rs,175 million without including interest and related financial factors and thus committed the offence punishable under section 409/109/34, P.P.C. Read with section 5(2) Act II of P.C.A., 1947 hence registration of this case."
3. ' I have heard Mr. Nafees A. Siddiqui, Advocate for the applicant.
4. ' At the very outset it may be mentioned that earlier bail application, Criminal Bail Application 930 of 1997 was moved by the applicant before this Court but that was dismissed for non-prosecution on 23-6-1997. This fact has been suppressed by the applicant in the instant bail application. In Salina Javaid v. S.M. Arshad PLD 1983 Kar. 303 the plaintiff had filed a recovery suit alongwith application for grant of interim relief, and she had prayed for a decree for accounts. However, the learned counsel appearing for the defendants in that suit raised the plea that there was an earlier suit filed by one of the defendants but no reference at all was made to that suit which was necessary and since that was not done the plaintiffs were not entitled to the equitable relief of temporary injunction sought by them. In reply it was conceded by the learned counsel for the plaintiffs that in the present suit, filing of the earlier suit and other necessary facts ought to have been disclosed and that there was no explanation or justification for not having done so except that it was a case of "sheer inadvertence". It was further contended as follows:-- ' there was no mala fides on the part of the plaintiffs and no advantage was sought to be taken or in fact obtained by such nondisclosure. It was further contended that even otherwise both the suits were filed in the same Court and it was expected, in the normal course of things that the suits would be placed for orders/hearing before the same Judge of this Court and as such the Judge would be aware of the pendency of the earlier suit and no possible advantage could have been gained by the non-disclosure of the earlier suit in the present suit. It was also contended that if the earlier suit had been disclosed even then this Court might have granted the ad interim injunction that has bean granted in this suit by order, dated 26-5-1982."
5. ' Mr. Nasir Aslam Zahid, J. (as his Lordship then was) repelled the above contentions of the learned counsel for the plaintiffs and his Lordship observed as follows:-- "I am not impressed by the contentions of learned counsel for the plaintiffs. As observed earlier, it was necessary for the plaintiff to make disclosure in the present suit about the earlier suit so as to place the entire picture before the Court. If this had been done and it had been disclosed in the present suit that ad interim order had not been granted on C.M.A. No,3502 of 1981 in Suit No,630 of 1981 and that counter-affidavits had been filed contesting the said application and denying the factual allegations and that rejoinder had .Been filed on 20-5-1982 and the said application was in fact fixed for hearing on 31-5-1982, this Court might not have passed the ad interim order, dated 26-5-1982 in this suit. The contention that the two suits had been filed in one Court i,e, this High Court and it was expected that the Judge who was to pass orders in this suit would be aware of the institution and pendency of the earlier suit has no force. Firstly, this High Court is not comprised of one Judge. Then one suit can be fixed before one Judge and another suit before another of this Court. Further where a second connected suit comes up before the same Judge of this Court, he is not always expected to remember the facts of and the orders passed in an earlier suit. It is the responsibility of the concerned party to bring the necessary facts about any previous litigation to the Court. It may be observed that complete disclosure about previous connected, related or relevant proceedings and orders is essential when a litigant approaches a Court and unless such non-disclosure can be satisfactorily explained, the claimant should not, as a matter of general principle, be granted interim relief. There may, however, be exceptional cases where, in the interest of justice and for very compelling reasons, the Court might be persuaded to grant interim relief in such a situation. In the later part of this order it is proposed to consider whether the present is one of such exceptional case." (Emphasis supplied).
6. ' In my humble view the principles laid down in Salma Jawaid v. S.M. Arshad (supra) should be applicable to all equitable and discretionary reliefs and bail before arrest being one of such reliefs, this general principle is squarely applicable to these proceedings as well. Mr. Nafees Ahmed Siddiqui, learned counsel for the applicant did not offer any explanation as to why the fact of filing of earlier bail application by the applicant was suppressed in these proceedings although previous bail application was also filed by the same learned counsel, therefore, even on this account the applicant is not entitled to the discretionary relief of bail.
7. ' Learned counsel for the applicant submitted that the applicant is being harassed by the officials of F.I.A. Although he was in constant contact with them and was given assurance that he would not be arrested (ii) being Chairman of Pakistan Steel Mills Corporation no loss at all was caused by him; (iii) inquiries were held by the senior officials of Pakistan Steel Mills as well as at the Federal level by the then Minister for Patroleum into the complaints of irregularities etc. But the applicant was always exonerated; (iv) the applicant being philanthropist is running an N.G.O. Namely Citizen Foundation and has established many schools and welfare institutions; (v) the co-accused namely Sajjad Hussain a former Chairman of Pakistan Steel Mills and S.N. Abbasi Director Finance are already on bail, therefore, the applicant is also entitled to the benefit of rule of consistency.
8. According to the learned counsel the challan has already been submitted before the trial Court on 2-5-1997 and frankly conceded that in the challan the applicant has been shown as an absconder.
9. It would be relevant to note that the applicant is not an illiterate person or a lay man or that he had no knowledge about the registration of the case or the investigation Which was conducted by the F.I.A., therefore, apparently it appears that he has deliberately avoided to join the investigation or to appear before the learned trial Court.
10. ' With regard to grant or refusal of anticipatory bail the following considerations have to be kept in mind as laid down in Murad Khan v. Fazle Subhan and another PLD 1983 SC 82:--
(a) Arrest being for ulterior motives such as humiliation and unjustified harassment.
(b) Prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, and
(c) Motivation of police on political consideration.
11. ' In Jamaluddin v. State 1985 SCM R 1949 scope of bail before arrest was further enlarged and it was held:-- "It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and unjustified harassment was valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ul-Hassan's case. In our opinion, therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of cancelling the order of bail."
12. ' In Miran Bux v. State and another reported in PLD 1989 SC 347 the merits of the case were made basis for making out a case of pre-arrest bail. (see also Jam Sadik Ali v. State 1989 PCr.LJ 1910 wherein it was held that the merits of the case can be touched while granting pre-arrest bail.
13. Respectfully following the above principles in the facts and circumstances of this case, in my humble view no case for any humiliation or unnecessary harassment or false involvement has been made out. From a plain reading of the F.I.R. It is evident that the prosecution is not motivated with any malice or ulterior motives. The submissions of the learned counsel for the applicant are devoid of any force. Messrs Sajjad Hussain and S.N. Abbasi, the two accused were granted bail after arrest as was submitted by Mr. Nafees E Ahmed Siddiqui while the applicant has applied for anticipatory bail. Pre-arrest bail and bail after arrest are based on entirely different principles. (See Muhammad Hussain v. The State 1982 SCM R 227 and order, dated 27-6-1996 passed in Criminal Bail Application No,906 of 1997 Brig. (Rtd.) Asghar Hayat Qureshi v. The State unreported). Therefore, the submission of Mr. Nafees Ahmed Siddiqui that rule of consistency is attracted to this case is misconceived. Suppression of filing of earlier bail application and his abscondence are additional factors which disentitle the applicant/accused to the grant of discretionary relief. Therefore, no case for anticipatory bail is made out and accordingly this application is dismissed.
14. Pre-arrest .