' The petitioner who along with others is involved in a case under section 409/420/468/471/109, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947 and section 3 of President's Order No,17 of 1977, registered with the F.I.A., Rawalpindi, on the basis of Enquiry No,26/94, conducted by Mr Jamil Ahmed Bhutto, Secretary, Privatization Commission, Islamabad, seeks to be admitted to bail.
2. For the just decision of the case, it is necessary to reproduce the F. I.R. In extenso, lodged against the petitioner and others. It reads:-"It is apparent from record that in order to show undue favour to the buyer and cause loss to the Public Exchequer, relevant rules and procedures were ignored while selling the Pak PVC Ltd. To Mr. Riaz Shafi of M/s. Reysheen (Pvt.) Ltd. The facts and circumstances leading to the allegations of corruption are briefly stated in the paragraphs following hereafter. (2) According to the ground rules for privatization of industrial enterprises (Annexure A) the process of valuation had to be initiated by the Privatization Commission through independent consultants, assessors, surveyors and auditors. Thereafter, these valuation reports were required to be reviewed, analysed and assessed independently by the three permanent members of the Commission. An agreed report was then to be prepared by Privatization Commission Secretariat to be placed before the Privatization Commission for discussion and approval. Final recommendations of the Commission had to be placed before the Cabinet Committee on Privatization (CCOP) for approval. These grounds rules were flouted in the case of Pakistan PVC Ltd. As under (a). The unit was offered for sale and closed bids were received on 17th October, 1991 whereas no process of valuation was undertaken. The report of valuation made by M/s. Zahid Zaheer Management Consultants, was dated 30th November, 1991. (b) The question of independent review, analysis or assessment of the abovementioned valuation report become irrelevant since the company had already been offered for sale and bids received, (c) Privatization Commission Secretariate had no opportunity to prepare any agreed report for discussion and approval of the Commission. (d) Since recommendations were not allowed to be prepared by the Privatization Commission, their submission before the CCOP for approval was not possible according to the rule 3. According to the standard rule (Annex-P) the previous owner/management of the company had the right of first refusal at the highest bid received provided the previous owner/management took part in the bid Mr. Riaz Shafi was not ascertained to be the previous owner of this Company when the bids were opened on 17th October, 1991 as under:-- Price offered M/s. First "Schon" Interfund Modaraba Rs,25 per share. (2) M/s. Jhelum Silk Mills (Pvt.) Ltd. Rs,20.10 per share. (3) Reysheen (Pvt.), Karachi (Mr. Reyaz Shafi) Rs,6.70 per share.
The highest bid for this company came from M/s. First Schon Inter fund Modaraba who offered a price of Rs,25 per share whereas the offer of Mr. Riaz Shafi was Rs,6.70 per share. The then Secretary Privatization Commission (Mr. Masihuddin) wrote on 10th December, 1991. The previous owner has not participated in the bidding. The highest bid received is higher than the break-up value of shares arrived at by the consultants. Once the report is reviewed by the, Commission, letter of intent would be issued to the highest bidder....(Annexure C). These observations were scored out.
(4) It was one of the conditions of sale that a joint audit had to be carried out as on the cut-off date (date of takeover) for the purpose of valuation of current assets and liabilities of the company on such date. If there was any reliance was in excess of 5% the party entitled to adjustment had to claim accordingly from the other party that much amount as per clause 9 of the sale agreement dated 23-1-1991 (Annexure D). In this case, instead of taking the cutoff date as 8th February, 1992 when the company was actually taken over by Mr. Riaz Shafi, a much later date i,e, 17th June, 1992 was adopted for the purpose of valuation in order to show undue favour to the buyer. (5) The record shows that former Chairman Lt.-Gen. (Retd.) Saeed Qadir and Mian Muhammad Arif former Member of the Privatization Commission were responsible for making this transaction in a corrupt manner. The details are given below:-- (a) Mr. Riaz Shafi was accepted as the Ex-owner of the company and his bid for Rs,6.70 was allowed to be matched with the highest bid of Rs,25 per share on the direction of the former Chairman, Privatization Commission who ordered issuance of letter of intent on 9th December, 1991 by allowing him to exercise the right of first refusal. Note of the former Chairman dated '9th December, 1991 is placed at Annexure E. This was in contrast to the scored out observations recorded on the same document by the former. Member/Secretary (Mr. Masihuddin) on 10th December, 1991, (b) The letter of intent dated 29th December, 1991 (Annexure F) was issued to Mr. Riaz Shafi after his acceptance of the offer of Rs,25 per share without following the ground rules stated at para. 2 above. The fact was that the valuation report was not prepared at that time. The report of valuers dated 30th November, 1991 was received in the office of the Privatization Commission on 2nd December, 1991. Review note on this valuation report is shown to have been prepared by Mian Muhammad Arif the then Member, Privatization Commission on 12th October, 1991 (Annex. G). It was not possible because a valuation report itself was dated 30th November, 1991 and revived on 2nd November, 1991. It is evident that the valuation report and the review note thereon were prepared to justify undue favour to the said, buyer, (c) The reference price was submitted to the Privatization Commission in its meeting held on 22nd February, 1992 which was much after the issuance of letter of indent to the buyer and was merely an exercise to attempt regularization of the deal already made with the buyer at the price of Rs,25 per share (Annex. H). (d) Having finalized the deal in favour of the buyer, the recommendation of the P.C. Was placed before the CCOP for approval on 21st March, 1992 (Annexure J). The CCOP's approval of the reference price at Rs,25 per share in this case was irrelevant because the transaction had already been made and finalized in favour of the buyer when L.O.I. Was issued on 29th December, 1991, sale agreement was signed on 23rd January, 1992 and management of the company had been transferred on 8th February, 1992 (Copy of sale agreement) (Annex. D) and letter for transfer of management is at (Annex. K).
6. The Buyer raised frivolous objection on the cut-off date (date of takeover) which was 8th February, 1992 and not 17th June, 1992 as claimed by the buyer. M/s. Sheikh Akram the then legal Advisor to the PC also pointed that the said cut-off date i,e, 8th February, 1992 for the purpose of the clause 9 of the sale agreement dated 23rd January, 1992 was legal and proper. However, the then Chairman made these remarks on the legal opinion. "I could have given this opinion. How does this help. Let us settle the matter amicably. (Copy of the legal opinion and remarks thereon are at Annex. L)
7. Another wrongful gain was allowed to the buyer and a supplemental agreement was drafted to pay for the Golden Hand Shake liability and to extend cut-off date from 8th February, 1992 to 17 June, 1992 (draft of supplementary agreement is at Annex. M). The then Member/Secretary Mr. Masihuddin, had serious reservations on this draft supplementary agreement which were overruled by the then Chairman Mr. Masihuddin's note on the said draft agreement and orders of the former Chairman thereon are reproduced as under:-- "The buyer did not turn up and sent his manager to finalize. Moreover, this agreement is in conflict with the CCOP decision on "cut-off" dates which should be the dates when the buyer took physical possession of the properties belonging to the company. Shifting the "cut-off" date from 8th February, 1992 (as per the original agreement) to 17th June, 1992 as per this agreement will result in further reduction in the "net worth" of the company which the Government will be required to reimburse to the buyer "Sd. Masihuddin 22/X". The matter was discussed in the Commission meeting today and the Commission approved the draft as proposed above. Please issue today. (Sd.) 24-10 Chairman. As per PC decision agreement had been signed and issued to A.O. For making the cheque for payment of Golden Hand Shake to the workers. Summary will have to be submitted to CCOP for revising its earlier decision on "cut-off" dates. Sd. Masih-ud-Din 25-10 Chairman.
8. Mr. Masih-ud-Din informed the PC in its meeting held on 24th October, 1992 (Minutes at Annex. N) that under the new arrangements the cut-off dates which as per the CCOP decision should be the dates when the buyer took physical possession of the properties belonging to the company are being shifted 8th February, 1992 as per the sale agreement to 17th June, 1992 which will result in further reduction in the net worth of the company which the Government will have to reimhurse to the buyer. However, this opinion was overruled and the Commission approved the said agreement already entered into on 22nd October, 1992, (9) In the aforesaid minutes of this meeting of the PC held on 24th October, 1992. Mian M. Arif the then Member of PC proposed that the new owners would in all probability require adjustment exceeding Rupees One Crore. The Commission decided to allow an advance of Rupees One Crore for adjustment against the alleged reduction in net worth of the company. This advance of money had still not been adjusted as the Buyer had not allowed finalization of joint audit according to the terms of the sale agreement.
10. In the course of the above transaction, P.C. Issued a cheque of Rs,16,386,875 on 25th October 1992 to Mr. Riaz Shafi as 50% contribution towards Golden Hand Shake liability. In spite of sending reminders on 9th December 1992, 6th January 1993 and 12th May 1993, adjustments accounts against this amount have not been rendered by the buyer. Privatization Commission issued another cheque of Rs,10,000,000 on 26th October 1992 in favour of Mr. Riaz Shafi as an advance to be utilized towards discharge of this liability of Golden Hand Shake for which adjustment accounts are also awaited in spite of the abovementioned reminders. There are reasonable doubts to believe that Mr. Riaz Shafi has not utilized the aforesaid advances of Rs,16,386,875 and Rs,10,000,000 respectively for the purpose of meeting the liabilities of Golden Hand Shake for workers. The above complaint was sent by me to the FACC on 12th July 1994.
(Sd.)
(JAMEEL AHMAD BHUTTO)
Member/Secretary, Privatization Commission, Finance Division, Islamabad. 8-9-1994
3. The petitioner was arrested in this case on 30th January 1995, the day, the F.I.R. (Case No,3/95) was registered against him and others. He applied for the grant of bail before the Special Judge (Central), Rawalpindi, on 6-2-1995, which was dismissed by him on 22-2-1995. The petitioner then filed bail application before this Court at Rawalpindi Bench which was dismissed on 8-5-1995. The said order of this Court was assailed by the petitioner before the august Supreme Court of Pakistan in Criminal Petition for Leave to Appeal No,88 of 1995. The co-accused of the petitioner, namely, Riaz Shafi also filed Criminal Petition for Leave to Appeal No,90 of 1995. Both the petitions were heard together and vide order dated 1-8-1995, the learned Judges of the august Supreme Court were pleased to decline to interfere with the discretion exercised by this Court in refusing bail to the petitioner and his co-accused. While dismissing the petitions, their Lordships observed:-- "... ... ...To ensure speedy trial, we direct the trial Court to decide the cases within three months from today and proceed with day to day, if necessary. It would be open to the petitioners to repeat applications for bail on merits after some evidence is recorded in the case or on medical grounds as and when necessary... ...
' As the trial did not conclude within a period of three months, the petitioner approached the learned Special Judge, Rawalpindi, again for bail on statutory ground which was dismissed by him vide order dated 10-6-1996 hence this petition before this Court.
4. The learned counsel for the petitioner vigorously contended that no offence under section 409, P.P.C. Is made out from the plain reading of the F.I.R. In fact, this offence was later on added in the F.I.R. Just to harass the petitioner who is a prominent leader of the Opposition. The petitioner cannot be charged/tried under section 409 read with section 420, P.P.C., simultaneously, as both the offences are mutually destructive, a person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term, except the offence under section 409, P.P.C., other offences do not fall within the prohibitory clause, thus the petitioner is entitled to the grant of bail on this score alone, that evidence of all the important prosecution witnesses including the evidence of Masi-ud-Din P.W.5, who is a star witness of the prosecution does not disclose any offence of having been committed by the petitioner, the case against the petitioner has been registered mala fide by way of politication victimization and he is behind the bars since his arrest, viz. 30-1-1995, whereas the other co-accused of the petitioner are on bail in the same case. Masi-ud-Din P.W.5 has conceded in his evidence aloft there was no entrustment of any property to the petitioner. He also deposed that all acts of privatization in the Pak. P.V.C. Were taken with the approval of Cabinet Committee in charge of the privatization. Thus the prosecution has failed to prove the most important ingredient of the offence that any loss was caused to the Government by the act of the petitioner. The petitioner is incarnation for the last 16 months without there being any meaningful progress in the trial and has acquired statutory right in view of clause
(a) of third proviso of section 497, Cr.P.C., as he is neither a hardened nor a desperate or dangerous criminal and is entitled to the grant of bail on this ground. Placed reliance on PLD 1995 SC pages 34 and 49, PLD 1983 Lahore 681, 1995 PCr.LJ pages 639 and 826 , 1990 SCMR 1090, 1992 PCr.LJ 2515 and 1994 PCr.LJ 801.
5. The learned Special Public Prosecutor has vehemently opposed this petition. He submitted that bail application of the petitioner was dismissed by the august Supreme Court of Pakistan on merit, hence in the presence of that order, the petitioner is debarred from claiming bail on merit, even this Court in these summary proceedings cannot make deeper appreciation of the evidence to ascertain the facts whether in the presence of the evidence so far recorded any case is made out against the petitioner or not. Anyhow, he has conceded this fact that due to the inordinate delay in the conclusion of the trial, the petitioner apparently has some case, but at the same time he submitted that this delay in the conclusion of trial, if closely scrutinized, cannot be attributed to the prosecution. The learned defence counsel in the present case has cross-examined the witnesses for more than 28/29 days, which amounts to misuse of the right given under the law to the learned defence counsel and this non-cooperative attitude of the learned defence counsel disentitles the petitioner for the grant of bail on the basis of delay in the conclusion of the trial. Even the learned defence counsel did not allow the case to proceed smoothly after the direction of the Supreme Court that the case should be decided within three months, if possible, by taking day to day proceedings. The interim orders disclose this fact that at every stage, the learned defence counsel appearing for the petitioner and the co-accused tried to delay and block the progress of the trial of this case. Placed reliance on 1995 PCr.LJ 1682, PLD 1982 SC-424, PLD 1994 SC 88, 1990 P.Cr.LJ 31 and 1983 SCMR 72.
6. I have minutely perused the record of the case and have critically examined the respective submissions of the learned counsel for the parties.
I find no force in the submission of the learned counsel for the petitioner so far as it relates to the grant of bail to the petitioner on merits. It is well-established principle of law that after the dismissal of a bail application on merits by the Supreme Court, this Court has no jurisdiction to grant bail to an accused person on merits. Reference in this connection be made to 1983 SCMR 72. Even otherwise, while deciding bail petitions, this Court would not like to make deeper appreciation of the evidence, lest it may prejudice the case of either party, hence the request of the petitioner for grant of bail on merits is declined.
7 It is an admitted fact that the petitioner is behind the bars for the last about 18 months without the conclusion of his trial and this delay cannot be attributed to the petitioner. No doubt, the learned counsel for the defence has taken many days for cross-examining the prosecution witnesses in which numerous documents have been produced by the prosecution, but their conduct does not fall within the observation made by the Supreme Court in PLD 1967 SC 167 where their Lordships held:-- "There is a regrettable practice among a class of lawyers to use prolonged cross-examination for the purpose of leading a witness into error after his alertness has been reduced through fatigue and his resistance to suggestions made in the form of leading question has thereby been reduced."
A perusal of the interim orders placed on the record shows that nowhere the learned trial Judge held that the cross-examination is out of the scope of the Evidence Act (now Qanun-e-Shahadat, 1984), irrelevant, vexatious or was done with the sole purpose of confusing the witness and to get some reply favourable to the defence. It is the cardinal principle of law that cross-examination is the ' greatest legal engine ever invented for discovery of truth', thus full latitude, be given to the learned counsel, who conducts the case in the trial Court to exercise this legal right.
Respectfully following the case-law, relied upon by the learned counsel for the petitioner, I find that the petitioner has acquired the vested right under the law to be released on bail due to the lethargic attitude of the prosecution in the conclusion of the trial.
As per allegations of the prosecution, the Government suffered loss of crore of rupees, hence while granting bail to the petitioner, in order to secure the interest of the prosecution as well as for ensuring the presence of the petitioner during the trial, I direct that he shall be released on bail in the sum of Rs,1,00,00,000 (one crore only) with three sureties each in the like amount to the satisfaction of the trial Court.
' Vide order dated 4-8-1996, the petitioner was granted bail by a short order, and these are the reasons for the grant of bail to the petitioner.