1. DR. GHOUS MUHAMMAD, J.- This order will dispose of bail application submitted on behalf of Brig.
2. (Retd.) Aslam Hayat Qureshi, involved in Crime No. 6/1997 registered at P.S. FIA, SBC Karachi, for the offences under section 409/420/109 PPC read with Section 5(2) of Prevention of Corruption Act.
3. 1947 (Act No. II of 1947). Earlier, he was granted protective bail by this Court on 26.5.1997. However, application for bail before arrest was rejected by the learned trial Court on 13.6.1997. Thereafter, he was taken into custody by the FIA State Bank Circle. (Rawalpindi), while presently he is admitted at the Army Cardiovascular Institute, Rawalpindi.
2. The FIR pertaining to this case was lodged on 16.4.1997 by the Assistant Director Allah Warrayo of FIA SBC Karachi wherein he has alleged as follow:- Consequent upon Enquiry No. 46/96 of FIA, State Bank Circle Karachi, it transpires that on 29.6.1995 M/S. Rustal Trading Limited 2 RUE Thalber, P.O. Box 1509, 211 Geneva-I made an offer for purchase of 50,000/- Tons of 100% broken Rice of US $ 150/- P.M.T. and another offer for the purchase of 50,000/- Tons of Basmati Pak-7 Rice @ US $ 350/- P.M.T. This offer was placed in the 238th meeting of the Board of Directors of RECP held on Wednesday the 5th July, 1995 at Head Office Karachi. The Board examined the proposal of M/s. Rustal Trading Ltd, & resolved to accept the price US $ 150/- P.M.T. For 40,000/- Tons of 100% broken in/Basmati Rice & US $ 390/- P.M.T, for 40,000/- Yond Basmati Pak-7 Rice respectively which was subsequently on the same date approved by the Ministry of Commerce. The Officers of RECP & Ministry of Commerce in contravention of the decision of Economic Coordination Committee of the Cabinet decided to sell Rice to M/s Rustal Trading Ltd. Without, calling tender on a low price in order to provide pecuniary advantage of M/s. Rustal Trading Ltd. And Corresponding Loss to RECP/Government. In fact the price should have been fixed on the basis of prevailing price of Rice in the International Market at the relevant time which was US $ 215/- PMT and US $ 425/- PMT respectively. Hence, the Officers of RECP, Ministry of Commerce and the buyers that are M/s. Rustal Trading Ltd. In collusion with each other and infurtherance of their common criminal intention by violating the rules on the subject and neglecting the price of Rice in the International Market caused a heavy wrongful loss to the RECP/Government & corresponding wrongful gains to the beneficiaries to the tune of US $ 40/- Lacs approximately or Rs. 16/- Crores. Prima facie a criminal case under section 409/420/109 PPC r/w Section 5(2)/47 PC A is made out and is registered against the accused persons namely (1)
4. S.M. Ishaque Ex-Chairman RECP (2) Muhammad Ali Abbas, director (Admn. Secretary RECP (3)
5. Kamil Saeed Khan, G.M. (S&P) RECP (4) A.R. Sial Technical Director RECP (5) Aftab Memon, Director Finance (6) Brig. (Retd.) Ikram Nabi, Director Commercial RECP (7) Ghulam Abbas Somro, Director Commercial RECP (8) Abdul Karim Ansari, Joint Secretary Ministry of Commerce (9) Ghulam Rasool Manager (Export) RECP (10) Brig. (Retd) Aslam Hayat Qureshi, Ex-Secretary Ministry of Commerce
(11) Sarwar Abbas unknown, Representative of M/s. Rustal Trading Ltd. (12) Riaz Laljee of M/s. Rustal Trading Ltd.
6. The case against the above-named accused persons is accordingly registered as they in their respective official capacities abused their official position by betraying the trust reposed upon them by the Federal Government as they with the active collaboration of co-accused of M/s. Rustal Trading Ltd. Committed the offence as stated.
7. A case is accordingly registered against all the accused persons and the investigation is taken up by the undersigned."
8. Mr. Abdul Hafiz Pirzada learned counsel for the applicant has submitted that:-
(a) the applicant is a retired Brig, of Pakistan Army and has served the Government of Punjab as Secretary Services and General Administration Department, Commerce Secretary Government of Pakistan and Chief Secretary Punjab therefore it is-a case of political victimisation as he has been involved in a false case with mala fide intention and ulterior motive;
(b) the principal characters who had taken the decision of sale of rice are the members Board of Directors RECP and the applicant being the Federal Commerce Secretary had only accorded a formal approval. He is neither a beneficiary nor has gained anything out of the alleged transaction;
(c) the co-accused, Riaz Laljee, and Sarwar Abbas, the representative of M/s. Rustal Trading Ltd.
9. Who are the actual beneficiaries are still absconders but the remaining co-accused named in the FIR were granted interim anticipatory bail by this Court. Therefore following the rule of consistency the applicant/accused is also entitled to bail.
10. Mr. Ikram Ahmed Ansari, learned D.A.G., while opposing the bail application submitted that RECP is a Government controlled body and the applicant/accused being the Federal Commerce Secretary had to ensure that the Government funds are not squandered. He also relied' on Sajjad Hussain v.
11. The State (PLD 1997 Karachi 165) wherein I (Dr. Ghous Muhammad, J) had observed as under:- "While following the above principles it would also be relevant to consider that our nation is overwhelmed with an avalanche of corruption under whose weight it is being relentlessly crushed.
12. Man, philosophers have said, is born innocent, it is the institutions of society that spoil him.
13. Whatever the truth in the observations, we seem to have institutionalised corruption. The bloody putrescence of the virus oozes out of every pore of the body politic and every segment of national life, be it Government, politics, business, law, medicine, health or education. The landmark judgment of the Hon'ble Supreme Court reported as Al-Jehad trust through Raeesul Mujahideen Habib-ul- Wahab-ul-Kairi and others v. Federation of Pakistan and others (PLD 1996 SC 324)
14. (popularly known as the Judges' case) has raised hopes that the Courts will now play a significant role in eradicating corruption and other social evils. Therefore it is humbly submitted that in such a situation a more. Pragmatic approach than has been the case so far bn the parts of the Courts is needed at the investigation as well as bail stages of corruption cases, because if the Courts show almost motherly leniency towards people accused of high corruption then it would be impossible to successfully investigate mid help bringing the culprits to book or to check the ever increasing cancer of corruption."
15. I have heard Mr. Abdul Hafiz Pirzada, learned counsel for the applicant, and Mr. Ikram Ahmed Ansari, learned D.A.G, for the State, and have perused the police papers and record.
16. The order in the case of Sajjad Hussain (supra) was challenged in the Supreme Court. However in the Supreme Court after arguments, the learned counsel withdrew the criminal petition for leave to appeal (See Cr.P.L.A. No. 17/1997, dated 1.2.1997, unreported).
17. The contention of Mr. Abdul Hafiz Pirzada that the appellant/accused did not apply his mind and approved the decision of the Board of R.E.C.P., "in a routine manner", hardly comes to the rescue of the accused. As a state functionary the said applicant was not supposed to grant any blind approvals. He had to apply his conscious mind, default whereof confirms dereliction of duty coupled with endorsing a wrong already committed by the co-accused. Failure to apply one's conscious mind can hardly absolve an incumbent with regard to proper dispensation of his duties.
18. It was pointed out by Mr. Ikram Ahmed Ansari that the Economic Coordination Committee of the Cabinet had decided in July, 1994 that rice upto 50,000/- M.T. Quantity could not be sold without calling tenders and summary on this subject for consideration of Economic Coordination Committee with the approval of the then Minister for Commerce had been floated by the applicant/accused himself on 16th July, 1994 as Additional Secretary/In-charge Ministry of Commerce Government of Pakistan which was ultimately approved by the said Committee.
19. Thereafter on 21st July, 1994 the policy decision was communicated to the RECP by Mr. Sajjad Akhter, Deputy Secretary Ministry of Commerce Government of Pakistan for further action.
20. Therefore it can be safely inferred that when he received the resolution of the RECP for approval the applicant/accused was well-aware of the above decision which he should have followed in letter and spirit instead of treating the matter, "in a routine manner". This argument is factually demolished since the appellant had himself prepared the summary to the E.C.C, of the Cabinet dated 16.7.1994 under his on signature. It would also be relevant to observe the following important circumstances which are borne out from the record:-
(a) the offer in question of M/s. Rustal Trading Ltd. Was received in RECP at Karachi on 5.7.1995;
(b) the meeting of Board of Directors/RECP was held in RECP Office at Karachi on the same day i.e. 5.7.1995;
(c) the RECP wrote a letter from Karachi to the applicant/accused for seeking approval on the same day i.e. 5.7.1995;
(d) the applicant/accused granted approval on the same day i.e. 5.7.1997 at Islamabad and copy of the said approval was also sent to RECP at Karachi on the same day i.e. 5.7.1995.
21. Had there been no mala fide or ulterior motives on the part of the applicant/accused instead of according approval to the resolution of R.E.C.P. On the same day in undue haste he could have raised the following objections:-
(a) that there was already a decision of the ECC restricting RECP not to sell 50,000/- M.T. Rice without calling tenders;
(b) that the offer in question of M/s. Rustal Trading Ltd. Was also for purchase of 50,000/- M.T. Of 100% broken rice and 50,000/- M.T. Of Basmati Rice and thus the authorities of the RECP were bound to advice the buyer to participate in open tender for the purchase of said quantity of Rice in order to comply with the decision of E.C.C.;
(c) that the price of Pak-7 Basmati Rice in the month of January, 1995 was at US $ 350/- PMT in the month of March, 1995 at US $ 380/- PMT in the month of May, 1995 at IS S 390/- PMT which clearly reveals an upward trend of increase in the price of said rice in the to months period, hence the fixing up of said rice as same i.e. US $ 390/- PMT by the Board after expiry of to month period i.e. On 5.7.1995 was also illegal and unjustified.
22. The above circumstances clearly belies the claim of the applicant/accused that he was falsely implicated in this case. His past credentials can also provide no defence. The applicant is involved in a corruption case. Corruption is the worst menace pervading in our society in these had times.
23. Corruption in the modern context has acquired a much wider amplitude. Corruption includes all forms of dishonest gains in cash, kind or favour/disfavour by persons in Government and those associated with public and political affairs. It is not easy to assess the true extent of while collar criminality in a community due to the reasons like complexity and impersonality of the offences and frequent lack of prosecutions and punishment for white collar crimes. People at large earnestly desire that corruption must be banished from our society. In such a situation the important question is what should be the judicial attitude towards a white collar offender generally defined as a person of high social/economic status who violates the law designed to regulate his occupational activities. It is clearly time to acknowledge corruption. As a real threat to our national survival, as a crime against society as serious add unforgivable as sedition and treason. Although it is a global issue yet there is no global prescription for eliminating corruption except that in each country combination of transparent political and decision-making culture and unwavering public vigilance aided by an alert media and a responsive judiciary can exert a powerful impact. The Law Commission of India has observed in its 47th report as follows:- "Suggestions are often made that in order that the lower magistracy may realise the seriousness of some of the social and economic offences, some method should be evolved of making the judiciary conscious of the grave damage caused to the country's economy and health by such anti-social crimes... We hope that the higher Courts are fully alive to the harm, and we have no doubt that on appropriate occasions, such as judicial conferences, the subject will receive attention. It is of utmost importance that all State instrumentalities^ involved in the investigation, prosecution and trial of these offences* must be oriented to the philosophy which treats these economic offences as a source of grave challenge to . The material wealth of the nation."
24. In my humble view it is high time that the gravity of white collar criminality should be realised. So far the application-of rule of consistency is concerned I am of the view that it is not attracted to this case because the other co-accused have only been granted an ad-interim anticipatory bail which is yet to be confirmed. Also the applicant/accused was arrested after his bail application was dismissed by the learned trial Court. Hence for disposal of his bail application the principles governing the grant or refusal of post arrest bail are attracted. Therefore the, last submission of Mr. Abdul Hafiz Pirzada is devoid of any force. (See Muhammad Hussain v. The State, 1982 SCMR 227 where it has been held that principles of bail before arrest and bail post arrest are distinct).
25. The upshot of the above discussion is that on the basis of tentative assessment of the evidence available with the prosecution I am not inclined to grant bail to the accused whose ultimate approval by ignoring prima facie
11. As committed by the members of the Board of Directors RECP has caused colossal pecuniary loss to the national exchequer and unlawful pecuniary gain to the absconding accused. He is presently confined at Army Cardiovascular Institute Rawalpindi and on the last date of hearing it was ordered that he should not be removed till the announcement of this order. There is no material on record to show that the applicant/accused is entitled to a discretionary relief due to any serious heart or other ailments. The certificate issued by the A.C.V.I. Rawalpindi shows that still the cause of his instability is being investigated. Therefore the earlier order dated 20th June, 1997 is recalled. The investigation agency would be at liberty tp deal with the accused in accordance with law but in any case he should not be denied his basic right of getting the prescribed proper medical treatment. Subject to these observations this application having no merits is dismissed.