1. ' The facts leading to present application for bail are that applicant is facing trial in Case No,GR-02 of 1999 before Senior Special Judge (Central) , Karachi under sections 409, 109 P.P.C. Read with section 5(2) of Prevention of Corruption Act 1947 which has arisen out of F.I.R. No,02 of 1999 F.I.A.
2. State Bank Circle, Karachi.
3. ' The facts disclosed in the F.I.R. Lodged on behalf of the State by complainant Abu Bakar Bhatti, Assistant Director F.I.A., State Bank Circle, Karachi on 5-1-1999 are reproduced in extenso herein below:-- "Consequent upon an enquiry No,06 of 1997 registered in F.I.A:' State Bank Circle, Karahi, it has been transpired that during July, 1996, the then Chairman of Pakistan Steel Muhammad Usman Farooqi in collusion with his co-accused Sub-Ordinates Officers of Pakistan Steel manipulates! The sale of 5000 Metric Tons of. Steel Billets on very low rates. For the purpose the procedure of tendering was flated in a cut short manner, and the contract of sale of unsorted Cast/Rolled. Billets being Prime Quality was awarded on 25-7-1996 to the following parties for the quantities and rates mentioned against each. While the rates of such quality produce were much higher i,e, ranging from Pak Rs,15,300 to Pak Rs,20,925 P.M.T. On the relevant time. {{DATA MISS ARANGE}} S.No, Name and Quantity Rates P.M.T.
4. Address of Party M/s. Star 800 M.T. Pak. Rs,7125/ Enterprises II, (approx P.M.T. Enclusive Room No,516 imately of Income Tax.
5. Haji Adam Sales Tax and other Chamber. Altaf taxes. Hussain Road. Karachi M/s. Ittehad 1277 MT Pak. Rs,7200/PMT Steel Indus (Approx enclusive of Income tries, Plot imately) Tax, Sales Tax and No,517, Indus other taxes. Trial Area, Sector 1-9. Islamabad.
3. M/s. Pak. Steel 1178 MT Pak. Rs,7150/PMT Re-Rolling (Approx enclusive of Income Mills, Plot imately)
6. Tax, Sales Tax and No,25, Sector other taxes.
7. 1-9, Islamabad
4. M/s. Al-Bashir 1242 MT Pak. Rs,7100/PMT Steel Indus (Approx enclusive of Income tries (Pvt.) imately) Tax, Sales Tax and Ltd., 41, PECO other taxes.
8. Road, Badami Bagh, Lahore. {{DATA MISS ARANGE}} ' Contrary to the awarded rates, the Billets of even the lowest grades of Pakistan Steel were being sold in the Market on considerably higher prices ranging from Pak. Rs,14,800 to Pak. Rs,15,150 PMT on the relevant time. From the above facts, it is evident that the accused Muhammad Usman Farooqui and his co-accused subordinates manipulated the sale of huge stock of valuable product of Pakistan Steel on very low prices to the parties of their own choice shown above, thus the accused Muhammad Usman Farooqi having domain over the Public Exchequer wilfully and deliberately by abusing his official position in collusion with other committed the act of criminal breach of trust and caused pecuniary advantages either to himself or to others and as a result of which the Public Exchequer had to sustain a huge loss of about 30% Million Rupees with ulterior motive.
9. ' In this way the accused persons committed the offences punishable under sections 409, 109 P.P.C.
10. Read with section 5(2) of PCA-H, 1947. Hence the case is registered under the orders of the competent Authority and the investigation taken up by the undersigned."
11. ' After usual investigation the applicant along with co-accused was sent up under interim charge- sheet to stand trial in his abstention on 21-1-1999 wherein he was shown as absconder accused.
12. Non-bailable warrants of arrest were therefore issued against him.
13. ' According to the applicant/accused he was in Malakand (N.-W.F.P.) where he came to know about the above case. He moved the High Court for transitory bail vide Cr. B.A. No,97 of 1999. The non-bailable warrants issued against him were suspended by the High Court and he was directed to move the ball before arrest application before the trial Court.
14. ' The applicant/accused applied for bail before arrest before the trial Court and on 10-2-1999 he was granted interim bail and on 11-2-1999 the order of grant of interim bail was recalled and applicant was taken into custody and was remanded to jail.
15. ' The applicant/accused again applied for bail after arrest before the trial Court but his plea was dismissed by impugned order dated 16-2-1999.
16. ' I have heard Mr. Kazi Muhammad Ashraf learned counsel for the applicant/accused and Mr. Syed Mamnoon Hassan learned Deputy Attorney-General for the State. The latter has opposed the bail plea of the applicant/accused.
17. The perusal of the record shows that the alleged incident took place in the year 1996 and whereas F.I.R. Was lodged on 5-1-1999 and it is silent with regard to any overt act by the applicant. The name of applicant/accused does not transpire in the F.I.R. Interim charge-sheet reveals that the property which is subject-matter of the case was not exclusively entrusted to the applicant so also he had no exclusive domain over the said property. It indicates that the applicant caused pecuniary advantages either to himself or other person. In the peculiar facts and circumstances it is yet to be seen whether misappropriation can be attributed to applicant and offence falls within the ambit of section 405, P.P.C. Which is punishable under section 409, P.P.C.
18. ' It is stated that applicant joined Pakistan Steel Mill in May, 1976 as Executive Engineer. His tenure of posting in Marketing Department of Steel Mill was first from 16-12-1995 to 5-8-1996 and second time, it was from 9-94996 to 23-10-1996. The duties and functions of the applicant were marketing of Pakistan Steel products and Bye-products in accordance with sales policy of the Mill as per published price of the product. It was the function of the applicant to call for tenders of substandard scrap and slow moving stocks, with the approval and under instructions of Competent Authority. However, for the highest bid or bids administrative and financial authority vested in Director Finance, a representative of Federal Government and the Chairman, it appears that the post held by the applicant was of an administrative nature and he was not competent to decide any policy matter or exercise discretion nor he had any financial authority.
19. ' The record further shows that in the month of June, 1996 M/s. Ferguson Associates (Pvt.) Ltd. Were engaged by Pakistan Steel to assess rolled billets stocks for inventory shortage. In the months of June and July entire billets deliveries to customers were carried on under the direct supervision of M/s. Ferguson. The fresh rolled billets were stocked separately and M/s- Ferguson asked them to consume the accumulated billets stock to zero level so that they could complete their report.
20. ' The letter of M/s. Ferguson Associates (Pvt.) Ltd. Is reproduced herein-below in extenso:-- "Ferguson Associates (Pvt.) Ltd.
21. ' Mr. Lateef Siddiqui May 29, 1996 ' DGM (Pay Roll), FA 837 ' Pakistan Steel ' Bin Qasim.
22. ' Dear Sir, ' Physical Stock Taking of Billets and Pig Iron ' It was a pleasure meeting you on May 26, 1996. I confirm having raised the following issues in our meeting.
23. ' Billets Some odd size billets are lying immediately after the exit point of billet mill which are causing difficulties in movement of fresh stocks coming out of the mill. As they are slow moving items, they are not being sold on a regular basis.
24. ' As we will need proper segregation of stocks after June 30, 1996 it is vital that the whole yard in front of the billet mill is cleared by June 15, 1996, so that we may start exercises in preparation for the main study.
25. ' We understand that Pakistan Steel is already considering disposing of the odd sizes billets. We will request you to please expedite your decisions in order to clear the yard by June 15, 1996. This will save Pakistan Steel extra costs of moving them for stock taking purposes.
26. ' Pig Iron ' Store items and runners scrap are lying at the Pig Iron yard covering major portion of the yard. As we will need adequate space for proper segregation of stocks after June 30, 1996, these must be removed from the yard and the yard should be cleared by. June 15, 1996.
27. ' We understand that Pakistan Steel is already considering disposing of the residue Pig Iron scattered in different yards. We will request you to please expedite your decisions in order to clear the yard by June 15, 1996.
28. ' This will save Pakistan Steel extra costs of moving them for stock taking purposes.
29. ' Weighbridge ' At present only one weighbridge at gate # 4 is working properly. The other is out of order. This causes delay in the despatch of items. We understand that maintenance department is considering to restore the weighbridge. We will request you to take immediate action for its restoration by June 15, 1996 in order to facilitate physical stocktaking.
30. ' Location Certificate ' We are enclosing Location Certificates of Pig Iron and Billets as on May, 15, 1996. We will require the same location certificates for the date of physical stocktaking finally selected by us. As our assignment will be restricted to those locations only. It is important that the Certificate correctly reflect all the locations.
31. ' Accommodation ' We were asked to use the room located outside Gate # 4 which is being used by the Pakistan Steel employees. This room is outside the plant area and entry from Gate # 4 is restricted to Trucks only. The Security Staff at Gate # 4 were not allowing us to enter the plant area from this gate and asked us to use Gate # 2.
32. ' As both billets and pig iron are lying inside the plant, we require an Air-conditioned room in the plant area close to the Pig Iron and Billets yards with a PC, printer and internal and external telephone lines.
33. ' Conveyance ' I spoke to Mr. Moeen-ul-Arfeen, Director Finance, on May 26, 1996 when he informed me that Pakistan Steel has decided to issue us two cars (one for the project director and one for the project team) immediately to save our conveyance charges otherwise payable by Pakistan Steel as per our proposal. We suggest that the action on this decision must be taken immediately, as we will not charge anything for conveyance from the date the cars are provided to us.
34. ' You might have noticed that we are trying to select June 30, 1996 as the cut off date for physical stock-taking to facilitate your reconciliation of the physical balances with the T book balances.
35. However, for this purpose it is important that both the yards are cleared and the weighbridge restored by June 15, 1996. If this could not be done, the physical stocktaking cannot be carried out as at June 30, 1996. Any other date selected for this purpose, will involve extra work by you to adjust your book balances accordingly.
36. ' I hope that immediate action will be taken on the above matters. Your truly, (Sd.3)
37. Zeeshan A. Qureshi. Director.
38. Encl: As above cc: The Chairman Pakistan Steel, Karachi.
39. Mr. Moeen Arfeen Director (Finance)
40. Pakistan Steel. Karachi.
41. Mr. Azizuddin Director (Personnel)."
42. ' It is urged that Pak Steel was left with 3607 tons of billets of various grades and sizes for which they could not find any buyer. Initially the lists of these slow moving stocks were communicated to Lahore Sales Office and the Rolling Mills Association many a time but they could not succeed.
43. Therefore with the approval of competent authority press advertisement was prepared and released. The case was sent to DGM (Cost) for working out the reserve price of the advertised products. The D.G.M. (Cost) proposed a committee which consisted of the applicant and D.G.M.
(Cost) suggested that the material under reference was of prime quality but the sale was not realised as customers were reluctant to buy it as per the information furnished by the Marketing Department. The, reserve price therefore could not be established. In view of this it was suggested that after opening the bids, the case may be put up before the competent Authority. By Marketing Department for the acceptance or otherwise of the bid price. Thus the bids were placed as suggested but were rejected by the Competent Authority with direction for Gallop Tenders for the lot.
44. ' It is further stated that on 21-2-1996, Manager Marketing submitted a note for gallop tender of stuck up material but applicant returned the note to him with a remark that it should have been initiated .By the concerned Section In charge. At about 5 p.m. Manager Marketing went to the applicant and informed him that the Section In charge was not available. The applicant was directed on the hotline by the former Chairman for issuance of the gallop tender to Public Relations Department, who had reserved space in newspaper for publishing the said tender. After, a short while one Mr. Qazi went to applicant and told him that Mr. Adil has directed him to sign the note which was not related to his section. The applicant asked him to sign which he did on behalf of other Section In charge but the said Mr. Adil typed incorrect name of the In charge of Section. In the gallop tender the prices were raised by two to three hundred rupees per metric ton. The note prepared by Marketing Department on gallop tender bids, was not accepted by the Chairman therefore he drafted the note himself and it was said to be typed by his stenographer Muhammad Sadiq. All the signatories of the note were called by the Chairman in his office and they were directed to sign the note then and there. All acted accordingly. The Director (Finance) who was a representative of Federal Government and Chief Executive, the Acting Chairman approved the highest bids and accordingly letter of awards was issued.
45. ' The D.G.M. (Cost), Director (Finance) and Acting Chairman are empowered to approve the bids, which they did. According to the applicant, he was not the In charge of the Tender Opening Committee and no such note sheet was on the record.
46. ' It was further argued that on 9-1-1999 the applicant informed the F.I.A. With regard to above facts through TCS and in that context his statement was also recorded by F.I.A. (Investigating Agency) on 2-2-1999. In support of this contention the applicant has filed T.C.S. Receipt marked as Annexure 'G'.
47. ' It is specifically urged in the application and argued that the observations of the learned trial Court to the effect that in previous Case No,3 of 1997 which arose out of F.LR. No,2 of 1997 the applicant was granted bail on medical grounds. On the basis of the report of Medical Board which was constituted is not borne out by the record as no such Medical Board was constituted nor any such directives were given by this Court. Mr. Bhatti I.O. Of the case was also not able to controvert this aspect of the matter. However the applicant was granted bail on the ground of sickness as well as merits by the trial Court in the previous case.
48. ' There is no cavil about the fact that the prosecution witnesses from the Steel Mill appear prima facie to be accomplices in the case. The learned trial Court had also taken, serious note of this fact and relevant observations from order dated 11-2-1999 are reproduced herein below for the sake of ready reference:-- "Filially, learned defence counsel has laid great stress on the point that it is really shocking to note that only this applicant has been made accused whereas other P.Ws., who did the same thing by signing the note sheet in question, were cited as prosecution witnesses against him. I also find some force in this contention but again this alone, did not come to the rescue of the applicant especially when he is alleged to have played some active role. However the Director/DG F.I.A. Being the Head of Department may like to take a serious notice thereof, at this stage."
49. ' It is strange that investigating agency has not paid heed to the observations of the learned trial Judge, nor has assigned any reasons for not complying with the same.
50. ' In the case of Shoaib Muhammad Butt v. Iftikharul Haque and others 1996 SCM R 1845 it was held that in order to determine the question whether bail was to be granted or not, the Court was bound to make tentative assessm ent of the material placed before it, but the Court however has to refrain, directly or indirectly, from giving any conclusive finding on the question of guilt or innocence of ,accused. It was further held that trial Court has to analyse the legal worth of material to be produced- by the parties including affidavits and during the hearing of bail application the Court can make tentative assessm ent of material which is different from and not on equal footing with appraisement of evidence, which is within the ambit of jurisdiction of the trial Court.
51. Admittedly, the case of the applicant hinges on documentary evidence, which is in possession of the prosecution. There is no direct evidence that applicant himself derived any benefit. Under the peculiar facts and circumstances of the case, whether the case of applicant prima facie comes within the ambit of section 405, P.P.C., which is punishable under section 409, P.P.C., necessitates further enquiry as contemplated under section 497(2), Cr.P.C.
52. ' In the case of Saeed Ahmed v. The State (1996 SCM R 1132) the following dicta was laid down by the Honourable Supreme Court:- "The learned counsel for the petitioner contended that there is no prohibition for grant of bail in respect of offences mentioned above, but with mala fide intention subsequently offence under section 409, P.P.C. Has also been added in order to bring the petitioner's case within the prohibitory clause of section 497, Cr.P.C. The case entirely depends upon documentary evidence which seems to be in possession of the prosecution and challan has already been submitted. The objection of the learned counsel regarding addition of section 409, P.P.C. May carry some weight, while considering the bail application. As there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution, in the circumstances, we convert the petition into an appeal and allow it, and grant bail to the petitioner on furnishing one surety in the sum of Rs,50,000 to the satisfaction of the Deputy Registrar, Supreme Court, Lahore."
53. It is well settled that merely because the embezzlement of huge property or amount is involved is no ground for the refusal of C hail. As already stated that entire case of prosecution rests on documentary evidence and applicant is a public servant as such his abscondence cannot be apprehended, therefore, in the light of decision in the case of Agha Talat Mehmood v. The State (1983 PCr.LJ 2144), in which ample law of the apex Court has been thrashed out, the applicant is entitled to bail.
54. ' In the context of further enquiry it will be pertinent to reproduce herein under the dicta of Honourable Supreme Court in the case of Shoaib Mehmood Butt v Iftikhar-ulI laque and others (19% SCMR 1845), which is as follows: - ' under section 497(2), Cr.P.C. Bail is to be allowed if it appears to the Court that there are sufficient grounds for further enquiry into the guilt of the accused. Now what would constitute as sufficient grounds for further enquiry would depend on the peculiar facts of each case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to snow that accused is not guilty of the offence with which he is charged. For example, if accused in charged for offence under section 302. P.P.C. But there are grounds for further enquiry which ,may show that he may not be convicted of the charge under section 302, P.P.C. But may be acquitted or convicted for a lesser offence."
55. ' In yet another Division Bench's decision of this Court in the case of The State v. Aziz alias Abdul Aziz (PLD 1985 Kar. 27), it was observed at page 35 as under:-- "For the purpose of understanding the correct import of the words 'further enquiry' as used in subsection (2) of, section 497, Cr.P.C., it would be necessary to read the provisions contained in subsection (1) and subsection (2) of section 497, Cr.P.C. In juxtaposition. It is a cardinal principle of interpretation that in the same statute, more so in the same section if two divergent principles are stated for the grant or refusal of relief the Court has to read such principles in juxtaposition and attempt to find out a method whereby fusion could be created between the seemingly different criterion laid down in the two provisions. What is more, redundancy or conflict cannot be easily ascribed to any provision contained in legislation."
56. ' Again at pages 36 and 37 of the same citation it was observed as under:-- "It must first be observed that before the words 'further inquiry' the subsection states that it should appear to the Court that there are not reasonable grounds for believing that the accused has committed a non bailable offence. Unless a Court comes to the conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence the Court cannot enter into the question of sufficiency of grounds for further inquiry. In fact the question of further inquiry would only arise if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non-bailable offence.
57. On the other hand if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the 'offence there is no question to Court holding a further inquiry into that matter for the purpose of grant of refusal of bail. Taking the other view would be pulpable absurd. In the circumstances the only reasonable conclusion is that the question of a case requiring further enquiry can come up for consideration only if the Court is of the view that reasonable grounds do not exist for believing that the accused has committed an offence.
58. ' The use of the words reasonable grounds for believing repetitively in subsections (1) and (2) of section 497, Cr.P.C. Is a further indication that the paramount criterion governing the grant or refusal of bail is the existence of reasonable ground to believe that the accused has committed an offence. If such inquiry is undertaken by the Court in the first instance and an affirmative finding is given by the Court to the effect that reasonable grounds do exist for believing the accused to be guilty the second inquiry contemplated by the words 'further inquiry' in subsection (2) of section 497, Cr.P.C. Would be meaningless and almost an exercise in futility for if on the one hand the Court comes to the conclusion that there are reasonable grounds to believe that the accused is .Guilty of an offence punishable with death or imprisonment for life or ten years there is no question of holding any 'further inquiry'.
59. ' The next question that arises is as to the material on which the Court can arrive at a conclusion that reasonable grounds exist for believing that the accused has committed such an offence. In that context the material is what would be available on the judicial record, and in the police paper if also available, and what emerges from section 164, Cr.P.C. Statements recorded at pre-trial stage. It is duty of the Court to examine these documents and if on a perusal of these documents a conclusion could be reached that there are reasonable grounds to believe that the accused has been guilty of an offence punishable with the serious sentences provided in law it is the bounden duty of the Court to refuse bail. On the other hand if all the material as is stated fails to convince the mind of the Judge that there are reasonable grounds to believe that the accused is guilty of an offence punishable with the sentences he would be justified in granting bail."
60. ' The applicant is a public servant. The allegations levelled against the applicant, relate to award of tenders. Lot many documents and correspondence-will have to be looked into to pin-point the individual liability of each accused, It will not be possible for the applicant to effectively defend his case and instruct his counsel if he remained behind bars.
61. ' Now I will advert to the ground of sickness. It is not disputed that applicant is old patient of heart and his angiography was made in the year 1996. The report of cardiologist and the prescription dated 5-1-1999 placed on record confirms the plea of sickness taken by the applicant. This very fact gets further support from the order of trial Court, which shows that applicant was ranted bail on consideration of merits as well as sickness in another case, which arose out of F.I.R. No,2 of 1997.
62. The applicant is admittedly a cardiac patient for which he needs specialized treatment, which cannot be properly provided to him in jail custody. In this context the dictum laid down by the Hon'ble Supreme Court in the case of Malik Muhammad Yousufullah Khan v. The State and others (PLD 1995 SC 58) is reproduced herein below:-- "From the above discussed position it is clear to us that the bail on medical ground can be granted under section 497, Cr.P.C. If the Court reaches the conclusion on the basis of medical report that the ailment with which the accused is suffering is such that it cannot be properly treated while in citstody in jail. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be a ground either to refuse or grant-the bail on medical ground. The correct criteria for grant of bail to an accused in a non-bailable case, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialised treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life."
63. ' In yet another case of Muhammad Sachal v. The State (1998 PCr.LJ 1597) this Court granted bail to an accused who was a cardiac patient.
64. ' The Honourable Supreme Court took a similar view in a recent case reported in 1998 SCM R 1065 (Zahim Khan Masood v. Special Judge. Central. Rawalpindi and 3 others). Wherein it was held that - - "It has been observed by the doctor in the above report that the ailment with which the petitioner is suffering, is likely to have hazardous effects on his life because stress and strain may aggravate his disease. The petitioner is. Undoubtedly, sick and as such, needs treatment in conductive conditions free from any kind of :pressure. In custody, it cannot be said that the petitioner shall have full peace of mind. His recovery from ailment shall, surely, be slow if he remains in detention. We are, therefore, satisfied to observe that the petitioner's life may seriously be to danger if he is not released on bail. In this view of the matter, the petitioner is admitted to bail. "
65. The upshot of the above discussion is that whether the applicant was entrusted with property or he.
66. Had any dominion over it or he caused loss to public exchequer and himself derived any benefit .
67. Or there was mens rea on his part and he was a privy to the commission of the offence. Has to be determined only after evidence is recorded.
68. ' Looking towards the peculiar facts and circumstances of the present case, the case necessitates further enquiry as the same is coupled with the fact of his ailment and he is entitled to bail.
69. Consequently, he is granted bail in the sum of Rs,5,00.000 (Rupees Five Lacs Only ) and P.R. Bond in the like to the satisfaction of the trial Court ' The observations made hereinabove are tentative in nature and the trial Court will not be influenced thereby in any way at the time of final adjudication of the case and it will be free to arrive at its own independent findings after evaluating the evidence in the case at the stage of trial.