' The applicant/accused Zulfiqar Ahmed son of Haji Hanif is facing trial under section 409, P.P.C.
Read with sections 109 and 34, P.P.C, further read with section 5(2) of Act III of 1947. The other accused in this case are Mashkoor Ali Usmani, Usman Farooqui former Chairman of Pakistan Steel Mill and some other Officers of Pakistan Steel. This case is presently pending in the Court of the learned Special Judge Centre-II, Karachi. The applicant/accused Zulfiqar Ahmad hereinafter referred to as the applicant and other official accused named hereinabove' were set up to stand trial by S.B.C. On the basis of F.I.R. No,2 of 1996.
2. The applicant has moved this Court under section 561-A, Cr.P.C. For quashment of order, dated 27-11-1999 passed by the learned trial Judge on the application moved by the applicant under section 249-A, Cr.P.C. In Special Case No,6 of 1996 titled as "State v. Mashkoor Ali Usmani and others "wherein he is one of the accused as stated hereinabove.
3. The F.I.R. In this case was lodged on 18-11-1996 by Hussain Ali Baloch, Inspector F.I.A. It is alleged in the said F.I.R. That the order to cause loss to Pakistan Steel, accused Usman Farooqui, Moinul Arfeen, Mashkoor Ahmed Usmani, Zulfiqar Ahmed (applicant herein) and Sikandar Rai former Staff Officer of Senator Asif Ali Zardari, planned to call for tender for purchase of five level indicators during the year 1996. This tender was called through press. The applicant also gave a bid for the said tender which was floated in the newspapers and it was opened on 11-3-1996. The applicant's firm namely M/s. Universal Industrial Corporation having given the lowest bid and having passed all the specification requirements, was awarded the tender for supply of five level indicators. The allegation against the applicant is that the price charged by his firm named above from Pakistan Steel was exorbitant. It is alleged that the last purchase price of this item was Rs,16,292 but five level indicators were purchased from applicant at the rate of Rs,56,55,000 each. It is thus, alleged that the accused persons being employees of Pakistan Steel Mill Corporation and being custodians of the public funds, wilfully and deliberately, by abusing their official position as such public servants in active collaboration with applicant Zulfiqar Ahmed of Messrs Universal Industrial Corporation and accused Shah Jehan Ahsan of Messrs Grid Pakistan (Pvt.) committed the act of criminal breach of trust to the tune of Rs,28 millions approximately and thus committed the offence punishable under section 409, P.P.C. Read with sections 109, P.P.C. And 34, P.P.C. Further read with section 5(2) of Act II of Prevention of Corruption Act, 1947.
4. After usual investigation, the applicant and other co-accused officials are facing trial in the Court named herein.
5. The prosecution has examined all their witnesses and they have brought all the material on record.
6. The applicant has denied the allegation of prosecution. He claimed to be innocent. He denied that he was party to any offence of criminal breach of trust and that of criminal misconduct committed by the officials of Pakistan Steel Mills Corporation. He denied that he abetted the offences of criminal breach of trust and criminal misconduct and/or that he joined hands with co- accused Usman Farooqui and absconding accused M.A. Usmani and Moinul-Arfeen who by abusing their official position purchased 5 level indicators for Rs,28;275,000 at the rate of Rs,56,55,000 per each level indicator.
7. I have heard Messrs A.Q. Halepota and M. Ilyas Khan the learned counsel who appeared on behalf of the applicant and Mr. Choudhri Iqbal Ahmed the learned standing counsel on behalf of the State. I have also gone through the material placed on record, with the assistance of the learned counsel appearing for the parties.
8. It has been strenuously argued by Mr. A.Q. Halepota for the applicant that the prosecution did not bring any evidence on record to prove that the applicant abetted the commission of offences of criminal breach of trust and criminal misconduct. He submitted that no evidence whatsoever was brought on record to show that the applicant instigated any official of Pakistan Steel to award the tender for supply of 5 'level indicators to this firm and/or engaged with any of the said officials in any conspiracy in this regard. It was argued that there was absolutely no evidence on record to indicate that the applicant intentionally aided by an act on illegal omission on his part to get the tender-for supply of 5 level indicators to Pakistan Steel. It was submitted by Mr. A.Q. Halepota that none of the ingredients of offence of abetment as defined in section 107, P.P.C. Were attracted in so far as the case of the applicant was concerned. It was argued by Mr. A.Q. Halepota for the applicant that the only charge against the applicant was that of abetment as envisaged by section 107, P.P.C. Which is punishable with the aid of section 109, P.P.C. It has been further argued by Mr. A.Q. Halepota one of the learned counsel for the applicant that it was for the officials of Pakistan Steel Mills Corporation to follow the rules and regulations in regard to the calling of tenders and acceptance or rejection thereof. The applicant being a seller was under no obligation and he could not be accountable for lapses if any on the part of the officials of Pakistan Steel in this regard.
9. In order to find out if the applicant abetted the commission of offences under sections 409, P.P.C.
And 5(2) of Act II of 1947, it may be necessary to look to the circumstances and background of the procedure for calling for 5 level indicators. It is stated by the learned counsel for the applicants that thrice the tender for supply/purchase of 5 level indicators was called. For the first time the proposal for calling these level indicators was floated on 29-11-1994 and first tender in this regard was called on 6-2-1995 when no one came forward to offer any bid. The second tender for the same purpose was called on 15-12-1995. Only one party participated in the second tender and gave bid. Since the party who gave the bid did not have the item with requisite specifications, his offer was rejected.
The applicant did not offer any bid while the tender was called for second time on 14-12-1995. Since Pakistan Steel needed the level indicators the third tender was called through local as well as international press. In all three parties including the above-named firm of the applicant gave bid for supply of 5 level indictors. Since the bid given by the firm of the applicant was the lowest, it was accepted. The Chairman, Pakistan Steel gave approval for this purchase on 14-5-1996. This third tender was opened/called for 11-3-1996. The approval for purchase from the firm of the applicant was thus given in official routine without any haste on the part of the Chairman of Pakistan Steel. It is thus argued that the bid given by the applicant's firm was accepted since it was lowest and that he got the order for sell of 5 level indicators in routine without their being any collaboration of his with official of Pakistan Steel. It is stated by Mr. A.Q. Halepota that the earlier two tenders were called when late Sajjad Hussain was Chairman of Pakistan Steel Mills Corporation.
10. Mr. A.Q. Halepota learned counsel for the applicant then referred to the evidence of prosecution witness Nasim Kazmi of Purchase Department of Pakistan Steel who stated that in the third tender the offer given by the applicant's firm was accepted technically as well as commercially. This witness further confirmed in his statement that General Manager Purchase had, also obtained/confirmed the prices of like level indicators from other Russian manufacturer/supplier.
The reference to the evidence of P.W. Hassan Askari of Finance Department showed that the proposal for purchase of these level indicators was for the first time initiated by the department concern on 21-11-1994. This witness produced the documents of original Russian manufacturer as Exh.75 and Exh.76. He candidly admitted that the prices for which these level indicators was purchased from Messrs Universal Industrial Corporation (Firm of applicant herein) were less than the price quoted by the original manufacturer from Russia. The reference was also made to the statement of P.W. Uzair A. Shaikh and P.W. Talib Hussain of Finance Department and it was argued by the learned counsel that since the price quoted by the firm of the applicant was lowest, none of these officers raised any objection to the price quoted by the applicant as a representative of his firm. Mr. Jalal Khan, Inspector of F.I.A. Who investigated this case was also examined by the trial Court. He admitted that the interim charge-sheet, dated 3-12-1996 submitted in the trial Court did not include the name of the applicant. He also admitted that he did not contact and national or international party for verification of the prices of these level indicators. He very candidly admitted that during investigation he did not find any relation/connection of applicant with any other co- accused. In his Court statement I.O. Jalal Khan further stated that press tender was floated three times nationally and internationally. Lastly I.O. Jalal Khan admitted that the prices quoted by the Russian manufacturer are much higher than the price at which the purchase order had been issued to M/s. Universal Industrial Corporation (Firm of the applicant herein). He further stated in his evidence that he did not approach the Russian manufacturer in order to find out whether prices shown in documents Exh.75 and Exh.76 were correct or not. He clearly stated that he did not have any evidence in his possession to dispute the prices quoted by the original Russian manufacturer.
11. Reference was also made by the learned counsel to the statement of P.W. Nazir Ahmed Khan of Bill Section to show that level indicators purchased from the applicant's firm were not available at cheaper price anywhere in the world.
12. Mr. Choudhri Iqbal Ahmed the learned Standing Counsel attempted to argue that the applicant was in collusion with the other official accused. In this regard he referred to some portions of statements of P.Ws. Hassan Askari and Farzana Salma of Mercury Corporation but he could not point out any evidence to show that the applicant was privy to any of these offences. The learned standing counsel could not rebut the submissions made by the learned counsel for the applicant regarding price of these 5 level indicators charged by the firm of applicant which according to the learned counsel was much less than the one quoted by original Russian manufacturer vide their letters Exh.75 and Exh.76.
13. Mr. Muhammad Ilyas Khan the other learned counsel for the applicant argued in rebuttal in order to reply to the arguments of the learned Standing Counsel. He submitted that, the learned Standing Counsel has not pointed out any evidence of abetment against the applicant. Mr. M. Ilyas Khan further submitted that the price quoted by Russian manufacturer for each level indicators was U.S. Dollar, 1,20,000 C & F. To this price of Customs and other duties and other taxes were added and which had to be added the price of each level indicator would be much more higher than the one charged by the applicant as a representative of his firm.
14, I have considered the arguments/ submissions of all the learned counsel. I have also gone through the order, dated 27-11-1999 passed by the learned trial Judge on the application under section 249-A, Cr.P.C. Moved by the applicant. The perusal of the said order shows that the learned trial Judge seemed to be under the impression that an application under section 249-A, Cr.P.C.
Was entertain able only if there was no iota of evidence against the applicant and further that such an application could not be moved at a belated stage after evidence was recorded. I am of the considered view that an application under section 249-A, Cr.P.C. Could be moved at any stage of the proceedings before the trial Court if there was no probability of the accused being convicted of any offence and that the charge was groundless. In the above view that I have taken, I am fortified by the decision of Hon'ble Supreme Court of Pakistan referred in PLD 1993 SC 399 with relevant observation at page 400. As regards the fact whether there is no probability of the applicant being convicted of any offence, all I can say in so far as the case of the applicant is concerned would be that the prosecution has failed to bring any evidence on record to bring home the charge of abetment against the applicant. The applicant is a representative of Messrs Universal Industrial Corporation which is a private firm. He cannot be proceeded with if there was no evidence that he abetted the commission of offences under sections 409, P.P.C. And 5(2) of the Act of II of 1947 (Prevention of Corruption Act, 1947). The evidence of P. Ws. Which has been filed alongwith the above Criminal Miscellaneous Application under section 561-A, Cr.P.C. And F.I.R., charge-sheets and note sheets which have also been filed alongwith it and through which I have been taken by the learned counsel, do not make out a case of abetment against the applicant. No evidence was led by the prosecution that there was any conspiracy, common design or common intention of the applicant with the other co-accused. It is an admitted position that the learned trial Court acquitted two other co-accused in this case. I am, therefore, of the considered view that even if the entire evidence adduced by the prosecution is considered to be true, yet the applicant cannot be convicted of any offence. The charge is groundless and there is no probability of the applicant being convicted of any offence. Besides it will not be out of place to mention here that proposal for purchase of level indicators was further first time initiated in the year 1994 to be more precise on 21-4-1994 when late Sajjad Hussain was Chairman. After advertisement made in local as well as international press it was only on 11-3-1996 that the third tender was approved and the order for supply of 5 level indictors was given to the applicant's firm they being the lowest bidders. In the circumstances, it is hard to believe that the officials who are co-accused in this case planned to call tender for purchase of level indicator only during the year 1996 to favour the applicant and/or that the applicant joined hands with these official accused as a consequence thereof the tender was called. In fact as it is clear from record the earlier two tenders were called on 6-2-1995 and 14- 12-1995 respectively when late Sajjad Hussain was Chairman. Thus, the process for procurement of these level indicators took about two years. It was not for the sake of giving any wrongful gain to the applicant that the level indicators which form subject-matter of this case were purchased by the officials of Pakistan Steel. Then the applicant is after all a seller. It was for the buyers to take care and see that they did not pay for any item at a higher rate. It was for the officials of Pakistan Steel who had dominion over and were custodians of funds of Pakistan Steel to follow all the rules and regulations in the matter of floating of tenders and verification of prices of the items required by them for Pakistan Steel Mills. The applicant cannot be held liable for fault if any of the officials of Pakistan Steel in the absence of any incriminating evidence showing that he was privy to the commission of such faults for ulterior motives of wrongful gain to himself and wrongful loss to Pakistan Steel. Nothing has been pointed out to me by the learned Standing Counsel whereby it could be held that over-charging was an offence under Pakistan Penal Code. Over-charging is an offence only under Price Control and Prevention of Profiteering and Hoarding Act, 1977. (Act XXXIX of 1977) for an item which is included in the said Act. Obviously level indicators are not included in the above Act.
15. This being the position, it will be sheer harassment to the applicant if he undergoes further ordeal of trial in this case before the learned Special Judge. If a case is bound to end in acquittal, it would amount to abuse of process of Court to allow such prosecution to continue. In the circumstances, it would be expedient in the interest of justice and to prevent further abuse of process of Court, if the proceedings pending only against the applicant in Case No,6 of 1996 of "State v. Mashkoor Ali Usmani and others" under section 409, P.P.C. Read with sections 109 and 34, P.P.C. And section 5(2) of Act II of 1947 are quashed and the order, dated 27-11-1999 passed by the learned Special Judge on application under section 249-A, Cr.P.C. Is also quashed.
16. In the above view which I have taken with regard to quashment of proceedings only against the applicant, I am fortified by judgment delivered in a case of Mst. Hamida v. State reported in PLD 1973 Karachi 478 by late Mr. Justice Tufail Ali A. Rehman who was the Chief Justice of this Court. The following observation made by his Lordship at page 482 are fully applicable to the case of the applicant and they are reproduced here in below in extenso:-- "Now while I agree that the most usual case which would call for quashment under section 561-A, Cr.P.C. Would be a case where the allegations constitute no offence at all, that section in its own terms does not state anything of the kind. Indeed as I understand that section it purports to give no new powers to the High Court but reaffirms and inherent power already existing to give effect to any order under this Code or to prevent abuse of process but it does not I' think follow that whenever such an allegation exists, however, flimsy the evidence which supports it and, however, transparently dishonestly the allegation is made, the Court must stand by and allow obviously innocent persons to suffer all the agonies of trial often prolonged in such matters, I cannot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassment of accused person whose acquittal is in any way certain and this would be an abuse of process of the Court and that in any event under section 561-A an order to quash the proceedings would be one which would secure the ends of justice. The ends of justice do not I think contemplate the farce of a trial which can result in an acquittal only."
17. In view of the above factual as well as legal position, I am of the considered view that the order, dated 27-11-1999 passed by the learned Special Judge, Central-II, Karachi upon application under section 249-A, Cr.P.C. Moved by the applicant is not sustainable in law as well as on facts and it is hereby quashed. The proceedings pending only against the applicant in Case No,6 of 1996 under sections 409, 109, 34, P.P.C. And section 5(2) of Act-II of 1947 (Prevention of Corruption Act, 1947) are quashed.
18. It is made clear that this order pertains only to the applicant and the learned trial Judge would proceeds with the case of the remaining accused in accordance with law and conclude it strictly on merits without being in any manner influenced by what is said in this order specifically with regard to the applicant against whom the charge was of abetment only.