1. ' The facts of the case, as gleaned from the F.I.R. And other material placed before us, have relevance to the tenure of the applicant as President of the National Bank of Pakistan (N.B.P.). He was appointed such President on 26-3-1995. Shortly after the appointment, viz. On 19-4-1995, in a meeting of the N.B.P. Board, chaired by himself, he suggested that there was "a need for a subcommittee of the Board to oversee, regulate and confirm the purchase of properties exceeding Rs,2.5 million". Some of the members of the Board expressed reservations, apparently, concerned about parting with the powers of the Board but the applicant clarified that all approvals made by the proposed committee would be submitted to the Board for information and the Board was authorised to re-open any such question. "Finally", the N.B.P. Board constituted the proposed sub- committee with the applicant as its Chairman and Chaudhry Sajjad Ali, Director, a representative of NESPAK and Habib Fida Ali, Architect, as its three members. At the same Board meeting, it was also resolved that the referred architect would not be disqualified from taking any assignment in which "he may like to compete" though he would not participate in the committee meetings in matters where he might be having business interest. The sub-committee, so constituted, met on 9- 7-1995 with the applicant in the chair, all three nominated members, including M. Ashraf Dangra, NESPAK representative, present and M. Yaqoob Vardhc, SEVP., Ibadur Rehman, SVP., Abdul Sattar, Advisor to the N.B.P. President on Branch Affairs and Syed Mukhtar Saeed attending. The proceedings of this meeting ex facie smack of that a mutual admiration society. Anyway the discussion that took place may be of considerable significance in this prosecution but more than that we would not like to say at this stage. However, relevant to these proceedings, the following suggestion of the applicant, wholeheartedly supproted from the side of the NESPAK representative and consequential nomination of Habib Fida Ali may be relevant:- "President took up the matter of Head Office front face lift with the sub-committee with a view to give it the modern look, the Head Office of the premier bank of the country deserves. Mr. M. Ashraf Dangra expressed the opinion that only one side face-lifting will not serve the purpose but all sides should undergo face-lifting and renovation. The sub-committee required Mr. Habib Fida Ali to develope concept for this facade lift. He promised to offer the concept in six weeks as he needed line to develope a proposal based on long-term needs with particular emphasis on providing a suitable main entrance, based also on security considerations."
2. ' In the Executive Committee meeting dated 20-9-1995 architect Habib Fida Ali presented the promised scheme for the uplift of the facade of the head office building which, according to him, was to entail a cost of approximately Rs,60 million. Approval to such scheme was implicitly given in such meeting and even a time schedule was deliberated upon, the applicant insisting that such be reduced from the proposed 12-month period. Approval of tender and award of work was thereupon stipulated for November, 1995. In conclusion, the applicant desired that a letter be issued to architect Habib Fida Ali within two days "regarding the approval of the scheme and adherence to the time schedule". In the purchase Sub-Committee Meeting held on 25-9-1995, the applicant, under the head "Other Items" inquired from Fida Ali about the facade of the Head Office building and asked him to adhere to the time schedule. On 13-11-1995, again under the Chairmanship of the applicant, the Executive Committee sanctioned Rs,4.8 million as architect's fee, adjustable "according to the lowest tender position after receipt of tenders". Such clearly implies that Habib Fida.Ali was sanctioned the fee before even the tenders were received. It was in the meeting of the N.B.P. Executive Committee, held on 7-1-1996, which was chaired by the applicant to begin with but at a time when the applicant had left "to attend some other very pressing engagements" that the Executive Committee sanctioned an expenditure of Rs,73.224 million for improvement of the front elevation of the N.B.P. Head Office Building, Karachi, through Messrs Alpha Aluminium Fabricators, Karachi, involving a jump of 25% or so over the estimate.
3. ' It would seem that the State Bank of Pakistan objected to outsiders being put on the Purchase Sub-Committee and through a Memo. Dated 2-6-1996 the matter was placed in the Board meeting held on 4-6-1996. In this meeting Mr. Yaqoob Vardag, Habib Fida Ali and M. Ashraf Dangra, who were called in, fully supported the actions and proceedings of the Purchase Sub-Committee, including the appointment of Habib Fida Ali as the consulting architect. The Board, under the chairmanship of the applicant, approved the foregoing. At the same time, while the Purchase Sub- Committee was disbanded, Habib Fida Ali and Ashraf Dangra were requested to remain available to advise relative to the ongoing and proposed Projects to the Board. It was only in the meeting of the N.B.P. Board, held on 23-6-1996, that the expenditure of Rs,73.224 million, approved by the Executive Committee on 7-1-1996 for improvement of the elevation of the N.B.P. Head Office Building, was sanctioned. Significantly, such sanction came through near about the time when the project, already assigned to the contractor, was stipulated to be completed in about a month's time and when, as would be seen below, 72% payment without commensurate performance had already been on the cards.
4. ' So far we have examined the background with reference to what transpired at the corporate level.
5. We would now see as to how the ground realities were shaping in the meantime.
6. ' The case of the prosecution is that in the context of appointment of Habib Fida Ali; contrary to procedure, the appointment was not made after inviting applications through the press. The appointed architect, in turn, on his own, suggested the names of three contracting firms for pre- qualification. That also was not in accordance with the rules and was objected to. Per letter dated 14-12-1995 it was suggested that the pre-qualification process should be undertaken upon inviting public applications. Habib Fida Ali, however, through his letter of the same date replied that the three contractors were chosen, as the job of the head office elevation was a specialised one and no other firm would be competent enough to undertake the same. According to the procedure of the bank, as many as a dozen distinct requirements are to be satisfied for pre-qualification of contractors. Be that as it may, as a sequence to the foregoing, the lowest tender of Rs,67.9 million of Alpha Aluminium Fabricators, one of the said three firms, was accepted. The Executive Committee approval for Rs,73.224 million, including architect's fee at 8%, as seen, followed on 7-1-1996. Work order was placed with the contractor on 15-1-1996 and accepted on the same date. 22-1-1996 was the scheduled date for start of work and completion time was stipulated to be six months.
7. Mobilization advance of 30% of the Project cost was to be released under the contract upon submission of a bank guarantee. The Contractor submitted the bank guarantee only on 2-4-1996 and mobilization advance of Rs,20.34 million was released to the contractor by issuance of a Pay Order. On 10-6-1996, however, the contractor asked for a further advance of Rs,28.6 million against shipping documents. In a note, dated 13-6-1996, Rafi Khan, Assistant V.P., recorded that there was no provision in the agreement for advance against shipping documents. The contractor was also asked to submit a statement of utilization of the mobilization advance. The statement, allegedly, indicated misuse of the mobilization advance to the extent of Rs,7.5 million. A Memo. Dated 24-6- 1996 was put up before the Executive Committee in its meeting held on 1-7-1996 and such committee, while the applicant was on ex-Pakistan leave, apparently, declined the request for further advance to the contractor. Even so, per letter dated 26-6-1996 architect Habib Fida Ali had recommended for the further advance against shipping documents upon furnishing an insurance guarantee. To top everything, upon the return of the applicant, the matter was placed before N.B.P.
8. Board in its meeting held on 14-7-1996, when architect Habib Fida Ali seems to have treated the case of the contractor as his own. The waiver was allowed and a further advance of Rs,28.60 million was permitted though at the same time, upon an assurance of the architect, it was recorded that the first phase of the elevation work would be completed before 14-8-1996 (the National Day). At this stage, the contractor submitted the guarantee of East-West Insurance Company for Rs,28.6 million whereas such company was enlisted in the bank with a maximum single transaction limit of Rs,20 million. Subsequently, without any request of the insurance company itself and upon a Memo.
9. Dated 19-8-1996, the applicant, apparently, gave a go-ahead for enhancement of the limit of the insurance company to Rs,28 million. The referred further advance payment of Rs,28 million was released to the contractor in two tranches of Rs,20 million and Rs,8 million respectively. In this way, the prosecution claims, 72% advance of the total cost was effected to the detriment of the bank.
10. ' As to the work executed, it is maintained by the prosecution that the quality of glass supplied for the front elevation by the contractor does not satisfy the specifications. The contractor was noticed by the officials and the matter was taken up in the Board meeting held on 7-11-1996, where architect Habib Fida Ali brought one Shahid with him as an expert and fully endorsed the quality supplied and work performed by the contractor. It, however, remains the case of the prosecution that the quality of glass does not satisfy the specifications and, what is more significant, the glass fixed by the contractor is China-made whereas the approved glass was to be of American origin.
11. As already said, it has also been the case of the prosecution that 72% of the cost namely, a sum of Rs,48.94 million was got released by the accused in relation to the contract in dispute whereas even at the stage of the last release no more than 20% work had been completed.
12. ' Let us now examine the defence version. At the outset, it was pleaded that the applicant is a victim of political vendetta of the Caretaker Government against the previous Government of the Pakistan People's Party and that the F.I.A. Was acting as a tool to oppress officers, who held high positions in the days of such Government. It has been maintained that at the time when N.B.P. Executive Committee accorded its approval to the disputed contract (7-1-1996) the accused had gone to see the then Prime Minister of Pakistan on urgent business and was not even personally present.
13. We have, however, observed that the approval, in essentials, had already been accorded in an earlier meeting, presided over by the applicant. It is further maintained that there was nothing wrong with the disputed contract itself and that if there was anything wrong others were equally responsible. Pin-pointing, it is stated that the crucial decision in the Executive Committee meeting dated 7-1-1996 was taken at a time when the applicant had already left for business of the State and as already said Yaqoob Vardag was in the chair. Such individual is said to be a brother-in-law of the incumbent Interior Minister in the Caretaker Government viz. Umer Afridi. Implied in the argument is a suggestion that if there was anything wrong with the contract others, including the present President of the bank namely, Abu Saeed Islahi, appointed on 2-12-1996, should also have been implicated. The gentleman last mentioned was also evidently, a member of the erstwhile Executive Committee. At this stage, we may emphasise that the concept of collective responsibility of a group may extend to all persons, constituting the group, who, knowingly and willingly, can be shown to have been parties to wrong-doing. It is on this criteria that the liability of the referred or any other participants shall be determined.
14. ' The learned Presiding Judge of the Special Court (Offences in Banks) Sindh, Karachi refused bail to the applicant on 12-1-1997 upon examining, in effect, all the above facts and also on the ground that investigation in the case was still continuing. As to this, Mr. Azizullah Shaikh, the learned counsel for the applicant, has urged that interim challan in the case has already been submitted and the time prescribed for submission of final challan has long since expired. Investigative process, upon the efflux of the requisite statutory period. Is claimed to have come to an end. We do not know whether the learned Presiding Judge has passed any order as yet treating the interim challan as final. Even so, after such a delay, as spelled out above, while there may be nothing in law to prevent continuing the investigation, something which may go on even after submission of the final challan, the continuation of the investigation process cannot come in the way of grants of bail, if called for.
15. ' When we heard the case for the first time on 21-1-1997, it was pleaded by the learned Deputy Attorney"-General that the elevation work of the N.B.P. Head Office Building was conceived of by the applicant with mala fide intentions and it is in that light that the chronology of events has to be viewed. The position was denied by Mr. Azizullah Shaikh, the learned counsel for the accused. He stated that it was an ongoing work, which the applicant had succeeded to and there was no element of initiation on his part. We, therefore, sent for the record. Mr.Mubarak Hussain Siddiqui, Deputy Attorney-General has produced the same. Such makes it amply manifest that the elevation work has pioneered by the applicant in association with others. Upon the production of record, however, the plea from the side of the accused altered and it was urged that the referred work was part of the renovation process which was going on. Be that as it may, another aspect highlighted from the side of the accused was based on a letter dated 4-1-1997, issued by the Senior Resident Engineer and Assistant V.P. (Design) addressed to the contractor (Alpha Aluminium Fabricators), which, pursuant to the contractor's letter of even date, says that the overall average quantity of work todate, was about 60% whereas Habib Fida Ali consultant (according to the letter) had assessed such work to be 60% up to 5-12-.1996. As against this, the learned Deputy Attorney- General has produced an addendum to such letter, issued by the same two individuals which explains their letter dated 4-1-1997 by saying that such "purely reflects the interim position of the work at site". A legal opinion obtained by the N.B.P. Dated 19-12-1996 has also been shown to us by the learned Deputy Attorney-General, which postulates that appointments of outsiders as members of N.B.P. Committee does not qualify under the rules, the opinion apparently augmenting the earlier State Bank of Pakistan objection about outsiders on the Purchase Committee viz. Of architect Fida Ali and Dhangra of NESPAK.
16. Examining the matter we are of the view that the allegations made do carry ingredients of an offence under section 409/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, II of 1947. There appears to be A sufficient material on the record to sustain the averments of wrong doing on the part of the several accused. Thus, rules of procedure may have, consistently, 'been thrown over-board, apparently, for ulterior motives. Persons were inducted at the behest of the applicant in decision-making positions. Exercise of these powers may have been conducive to wrong-doing. Architect Habib Fida Ali was sanctioned a large payment in proceedings, where he may have actively participated to his own advantage. The sanction for him came about even before the work contract was awarded. All those interested, thereupon, appear to have acted in unison to perpetuate illegalities at the cost of the institution, which they were ex facie serving. Thus, 72% payment was released to the contractor before anything substantial had surfaced above the ground, in circumstances which could indicate circumvention the rule sat every stage. Above all, the case may involve belatant high-handed conduct at the level of functionaries performing at the apex and it is such conduct of such like persons, which has brought the country to its present pass.
17. The applicant's role appears to be clear. No lenient attitude, therefore, is deserved in the case and the rule laid down in similar circumstances under the same law viz. Section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, by the Supreme Court in Shujaat Hussain v.
18. State 1995 SCM R 1249 applies with full force.
19. ' Before parting we would like to state that we have not been a little disturbed by the manner in which the proceedings have been conducted at the Board and Committee levels of the National Bank of Pakistan, as reflected hereinabove. It seems to us that more persons, apart from those presently accused of the crime, may be involved in the offence than have been indicted so far.
20. There may also be substance in the allegations of Mr. Azizullah Shaikh regarding the referred Yaqoob Vardag because, from the various proceedings that we have seen, he appears also to have played a pivotal role in the unpalatable affair. Surely, all such aspects would be considered before the trial commences and action in accordance with law shall follow.
21. Above recorded were the reasons for the short order through which, on 29-1-1997, we had dismissed this bail application.