1. ' The applicant has applied for bail in a case registered against him vide F.I.R. No,13 of 1997, Police Station F.I.A., S.B.0 Karachi under section 409/109, P.P.C. Read with section 5(2) Act II of P.C.A. , 1947.
2. ' Brief facts of the case are that consequent upon an Inquiry regarding procurement of Grate Bars for Sintering Plant of Pakistan Steel Mills, it was revealed that the In charge of the Plant had made false alarm for procurement of 6000 Grate Bars of Russian Design and had accordingly demanded replacement thereof by April, 1996. As such Heavy Mechanical Complex, Texila and Peoples Steel Mills, Karachi were approached as to whether they could meet the supply of Grate Bars within the target date line. It seems that such Companies had declined on the premise that supplies could not be achieved within a period of six months, upon receipt of a confirmed order for such supply.
3. The prosecution has further proceeded against the applicant with an allegation to have entered into a conspiracy with other officers of the organization to make purchase of the said bars from open market and had avoided opening of tenders on the ground of emergency. Resultantly, Government exchequer is stated to have been defrauded to the tune of Rs,5,13,00,000. One Mushtaq Rana of Messrs.' Charagh Sons Engineering Limited is stated to have been introduced into the picture with the quotation at the rate of Rs,1,350 per bar as against Rs,495 of the Peoples Steel Mills and the same is stated to have been accepted by the applicant in order to receive pecuniary advantage. Quotation of Peoples Steel Mills and Messrs Heavy Mechanical Complex were rejected on the premise that they were not meeting the time schedule. It seems that Messrs.' Charagh Sons were to complete the supplies in two installments within a period of six months which was stated to have been further extended by one year. Mobilization advance to the extent of Rs,2,32,45,200 was also paid to Messrs Charagh Sons against Insurance Guarantee instead of bank guarantee.
4. ' The learned counsel for the applicant has contended that there is delay of nearly two years in the lodging of the F.I.R. Without any explanation and that the applicant has remained in custody for a long time during which period no inquiry was stated to have been conducted as is reflected in the F.I.R. He further canvassed that the present applicant by virtue of being the Chairman of Pakistan Steel Mills at the relevant time had no control whatsoever, with the creation of urgent requirement of grate bars and so also he was not associated with the purchase thereof from the open market or for that matter from Messrs Charagh Sons. It was stressed by the learned counsel that Messrs.'
5. Charagh Sons is a subsidiary down stream firm of Pakistan Steel itself, and is invariably concerned for making purchases from the local market for the items required. While making his attack on the F.I.R., it was contended by the learned counsel that there is no allegation that the applicant has committed breach of trust in relation to any particular amount, or committed misconduct as is defined in the Prevention of Corruption Act, 1947. Applicant was stated to be not the competent Authority to release money for the purchase of the items mentioned in the F.I.R. And the financial transaction according to the learned counsel, are dealt with by the Finance Department and a special committee constituted for this purpose. Acceptance of quotation of Charagh Sons is contended not to have been made by the applicant who could not be held responsible for any act of omission or negligence on part of other officers of the Steel Mills. Malice and enmity is contended against the applicant on account of the attitude of certain officials in the Federal Government.
6. Consequently, the applicant is stated to be embroiled in numerous false criminal case in the last two years without specific role having been assigned to him. Present F.I.R. Is stated to be the consequential result to achieve the ulterior motive. In order to establish such malice, enmity and ulterior "motive, reliance has been placed by the learned counsel on a show-cause notice, dated 26-8-1997 which according to him was issued on 26-8-1997 which did not contain allegations against the applicant which forms the basis of the present F.I.R. It was only on 17-12-1997 that a second show-cause notice is stated to have been issued against the applicant wherein subject- matter of the F.I.R. Has been made a ground. But before a reply to the show-cause notice -.Ould have been given by the applicant, the present F.I.R. Has been lodged on 24-10-1997. This act on part of the Investigating Agency, according to the learned counsel strengthens the contention of malice, ulterior motive and enmity which has set the ball rolling against the applicant. Serious sickness of the applicant has also been strenuously canvassed. Reliance has been placed on Standing Order No,41 of 1993 issued by the Director-General, F.I.A. In respect of all matters pertaining to engineering, whereby it is required under the Standing Orders that such matters which relate to engineering are to be conducted with the assistance of Deputy Director of Engineering Head Quarter, and in pursuance of the said Standing Order it was pointed out by the learned counsel that the investigation of the case ought to have been conducted with the help of the Engineering Department. Such was the course followed vide letter of Deputy Director Headquarter, Islamabad, dated 10-6-1997. The present Investigating Officer is stated to have addressed a letter, dated 12-7-1997 to the Director Engineering requesting assistance as envisaged in the Standing Order 41 of 1993 for investigation of the matter with the help of Deputy Director F.I.A.
7. He further proceeded to point out that Deputy Director Engineering Shahid Fazal of F.I.A., Karachi Zone, after having conducted proper investigation into the matter had submitted his detailed technical report pertaining to the procurement of 60,000 grate bars for the plant of Pakistan Steel Mills. The said report according to the learned counsel had exonerated the applicant from the charges contained in the F.I.R. Learned counsel further pointed out that the applicant has continued to be subjected to successive criminal prosecution and by now as many as seven cases have been registered against the applicant. List of seven cases have been provided by the learned counsel for the applicant which are as follows:-
(1) F.I.R. No.2 of 1997. F.I.A.
8. S.B.C., KarachiBail has been granted by Honourable High Court vide order passed in Bail Application No.547 of 1997, dated 27-4-1998.
9. (2)Ehtesab Reference No. 16 of 1997Bail has been granted by the Ehtesab Bench at Karachi. Order passed by Mr. Justice Dr. Ghous Muhammad. Order dated 6-4-1998.
(3) F. I. R. No.4 of 1998, F.I.A.
10. S.I.U., Islamabad.Bail application pending before High Court vide Bail Application No.657 of 1998. Now fixed for hearing on 13-10-1998.
(4) F.I.R. No.2 of 1996 F.I.A.
11. C.C.-II, KarachiBail application is pending before High Court vide Bail Application No.667 of 1998.
12. (5)F.I.R. No.19 of 1996 F.I.A.
13. S.B.C., Karachi.Bail has been granted by the learned trial i.e. Special Judge Central-II.
14. Karachi in the sum of Rs.5,00,000.
15. (6)F. I. R. No.21 of 1997 F.I.A.
16. S.B.C., KarachiBail has been granted by the learned trial i.e. Special Judge Central-II, Karachi in the sum of Rs.5,00,000.
(7) F.I.R. No.2 of 1997 F.I.A, S.B.CKarachi.Bail has been granted by the learned trial i.e. Special Judge Central-II.
17. Karachi in the sum of Rs.5,00,000.
18. ' Reliance has been placed on PLD 1995 SC 58, 1995 M LD 1829, 1998 SCMR 64, 1996 SCM R 1132, PLD 1963 SC 81.
19. ' On the other hand Mr. Mubarak Siddiqui the learned Dy.A.-G. Has contended that the applicant is seeking bail on a report which is bogus. He further proceeded to canvass that based on this bogus report made by Mr. Shahid Fazal being Deputy Director, has been transferred, It was contended by the learned Dy,A.-G, that the applicant being the custodian of public funds had willfully and deliberately by abusing his position in active collaboratidn with co-accused persons committed act of criminal breach of trust in respect of a large sum of money, and thus, was involved in the commission of the alleged offence. Consequently, applicant was stated as not to be entitled to the concession of bail. During the course of the argument the learned Dy.A.-G. Was speciTically asked whether any punitive action has been taken against the Deputy Director, Engineering who had authored the detailed technical report in respect of Inquiry No,18 of 1996 of F.I.A. State Bank Circle, Karachi. He has very fairly and frankly stated that no punitive action has been initiated or contemplated to have been taken against the said Deputy Director. Consequently, the learned Dy.A.-G. Proceeded to own the report by calling the same to be bogus. However, he has stated that no steps have even been taken in the direction to get this report excluded from the prosecution evidence that is proposed to be brought on record at the stage of trial.
20. ' Having considered the submissions made, at the very outset it would be profitable to reproduce portion at page 61 of the report which is as follows:-- "The rate allowed to C.S.E.L. For procurement of Grate Bars are quite reasonable and justified (analysis is attached). It did not cause any financial loss to Pakistan Steel Mills/Government of Pakistan, nor wrongful gain was made by C.S.E.L. ' keeping all above in view it is concluded that no misappropriation of funds and no financial losses has been incurred to the Government/ Pakistan Steel Mills during this deal. And also no procedural lapse was committed during the award of this work, rather this deal benefited the Government."
21. ' Keeping in view the fact that the first show-cause notice did not figure anything in respect of the present FIR., nor did it mention this case against the applicant. It seems the second show-cause notice related to the present F.I.R., and before a reply of the same could be given, this criminal case against the applicant was registered.
22. ' Having examined Standing Order No,41 of 1993 which has been issued under the authority of the Director-General, F.I.A. Providing that the Investigating Officer who are posted in the field offices are not fully able to comprehend the intricacies of engineering matters and as such no investigation in the cases/inquiry can be properly finalized without having a technical report from the Directorate of Engineering. It is in this background that Standing Order 41 provided that as cases and inquiries have been mishandled by Investigating Officers for want of timely and adequate technical advice, and therefore, in the interest of the agency, it was directed that all cases, inquiries pertaining to engineering matters be done and obtained from the Deputy Director, Engineering. It was based on this Standing Order 41 of 1993 that the inquiry No,18 of 1996 was sought to be made in terms of re- investigation of the facts in issue, which were required to be carried out on specific points in order to unfold the intricacies of this inquiry being technical in nature (page 53). For the purposes of dealing with the aspect as to the rate of Rs,1,350 per bar to C.S.E.L. Compared to the rate of 495 plus taxes by Peoples Steel Mills is concerned. Suffice it to say that technical report by itself has provided that previously about 20,000 number grate bars were supplied by Peoples Steel Mills to Pakistan Steel Mills out of which 85% were rejected material (page 57 Annexure "J") which resulted into huge financial loss but no action appears to have been taken in order to fix the responsibility. If such is the position that 85% are rejected supply, then the cost which ought to have been incurred would be far more than Rs,1,350 per bar. Delay in the lodging of the F.I.R. Remains unexplained.
23. Successive criminal prosecution cannot be ignored. Outcome of the procedure prescribed in the light of Standing Order 41 being favorable to the applicant though claimed to be bogus but no steps in such directions having been taken by the prosecution goes to indicate that even if the report is bogus yet the authority under which it has beeirauthored has neither been questioned, nor any action has been taken to have given an incorrect report. Such report continues to hold the field on behalf of the prosecution. As such this aspect alone could make the case of the applicant fall within the scope of further inquiry as contemplated by sub-clause (2) to section 497, Cr.P.C.
24. Without entering into the question of sickness of the applicant. It seems that the applicant has undergone .Major surgeries as an indoor patient. Such as by-pass and has remained in confinement. Whether his remaining in jail is detrimental to his life or not is not being embarked upon as the applicant appears to be entitled to the concession of bail. I, therefore, grant bail to the applicant, upon his furnishing a surety in the sum of Rs,10,00,000 (Rupees one million) with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.