MUZAMMIL NIAZI and others vs THE STATE

ORDER

SARMAD JALAL OSMANY, J.--As both these Bail Applications arise out of the same reference, we propose to dispose them of through this common order.

1. The facts giving rise to the filing of the Reference viz. No,29 of 2002, are that applicant/accused Javed Burki was the Chairman of the Board of Directors of Pakistan Automobile Corporation (Pvt.)

Ltd. (PACO) at the relevant time whereas applicant/accused Muzammil Niazi was appointed the Managing Director of Trailer Development Corporation of Pakistan (Pvt.) Ltd. (TDC). As both these Companies were State-owned companies, the applicants were thus public servants. That from 1987 to 1991, PACO and Pakistan Motor Car Company (PMC) (a unit of PACO), spent huge amounts on research and development of a Truck for Pakistan Army while utilizing the facilities of TDC. After the finalization and approval this was named as "Yasoob Truck".

2. Based on the foregoing facts and circumstances the reference against the applicants enumerates the following allegations:--

(a) That in violation of the Prime Minister's Directive dated 30-5-1991 whereby production of the vehicle was to be undertaken by utilizing the existing manufacturing facilities of PACO and the Pakistan Army, the accused in gross violation thereof and with criminal intent sponsored the formation of a company in the private sector viz: Trans Mobile Ltd. (TML) to undertake this project which was envisaged through a Joint Venture Agreement between PMC and Management Partners (Pvt.) Ltd. (MPL) a company formed by applicant Muzammil Niazi alongwith some other ex- employees of PACO (Para. 5 of the Reference).

(b) That although TDC had manufactured the proto type of the vehicles and also had enough capacity/expertise to undertake the production of the same, its premises were rented out to TML which resulted in the forcible closure of TDC. Even the agreed rent was not paid to TDC which was thereupon compelled to file Suit No,983 of 1998 against TML before this Court for recovery etc. (para.7 of the Reference).

(c) That the Joint Venture Agreement between PMC (a unit fully owned by the Government of Pakistan through PACO) and MPL is heavily biased in favour of MPL which was formed by accused No,2 and his associates which is clear evidence of the favouritism extended to accused No,2 by accused No,1 at the expense of the Government of Pakistan, (para.8 of the Reference).

(d) That the accused No,1 posted accused No,2 only for four days to PACO from his assignment in TDC as M.D. So that the latter could benefit from the voluntary retirement scheme in PACO which was unavailable to him in TDC. This is yet again a favour given by accused No,1 to accused No,2 at the expense of the exchequer. So also while accused No,2 was still M.D. Of TDC he had become the M.D. Of TML which he could not do. Similarly, the accused No,1 was at one and the same time Chairman of PACO and of TML. (para.9 of the Reference).

(e) That the accused No,2 being the MD of TML deceitfully obtained the approval of the Board of this Company for grant of excessive salaries and perquisites for himself and his hand-picked executives thus misusing public funds. (para.12 of the Reference).

(f) That in the 16th Board of Directors meeting of PMC held on 13-5-1994 it was decided to terminate the Joint Venture Agreement between PMC and MPL which was duly recorded in the minutes and so also to probe into the causes of the costs over run of the project. However, contrary to this decision, the accused No,1 wilfully failed to exercise his authority in order to implement the same enabling accused No,2 to continue as the Managing Director TML thus resulting in huge losses to the exchequer which amounted to criminal misuse of authority (paras. 13 and 15).

(g) That in 1996 the accused No,1 arranged a visit by Mr.Kamal Azfar the then Governor of Sindh to TML in order to manoeuvre a financial package of Rs,450 millions from public funds to TML when admittedly the Provincial Government had no concern at all with the project as it was controlled and supervised by the Federal Government. Further the applicant No,1 also got a study conducted through Mr.Shahab Azfar of Messrs Management Services Ltd. To recommend further injection of funds into TML by PACO despite huge losses which was paid for by PACO from its own funds.

Applicant No,1 misrepresented that the study had been conducted by the Governor of Sindh and hence, the latter's name was misused in order to elicit support for the induction of Rs,450 Millions into the project which was already incurring heavy losses. (Paras. 16 and 17 of the Reference).

(h) That in a high level Meeting of the Ministry of Industries and Production held on 26-5-1996 the accused No,1 manoeuvred to obtain the consent of the participants to provide Rs,450 Millions to TML through the sale of PACO shares without apprising them of the inherent flaws in assisting a company which was already running into huge losses. Further the accused No,1 did not follow the conditionalities approved at this meeting for the purpose of releasing the financial assistance to TML viz. Resolution of outstanding contractual issues. Finally the accused No,2 being the MD of TML did not utilize the financial support provided by accused No,1 in the manner prescribed by PACO but spent it at his own sweet will without obtaining approvals etc. (paras. No,19, 20 and 21 of the Reference).

(i) That both the accused incurred a number of unauthorized expenses/investments for example an amount Rs,2 Millions was invested by accused No,2 as MD of TML in Arabian Sea Country Club of which the accused No,1 was the Chairman; accused No,2 extended various monetary favours from the funds of TML to different individuals and organizations and also incurred a number of unauthorized expenses viz. Payment of Credit Card Bills and purchase of Golf Sets etc. Which had no nexus with the objects of the company and hence these were made with the obvious intent to draw personal benefits for himself and his associates; finally the accused No,2 obtained a palatial house in Karachi at an exorbitant rent viz. Yasoob House which was used for the residence of accused No,1. (Paras. No,23, 24 and 25 of the Reference).

The cumulative losses caused to the exchequer as a consequence of the aforesaid criminal acts of the applicants has been estimated to be in the amount of Rs,1,765,085,422.00. It has therefore been alleged in the Reference that applicant Javed Burki being a public servant dishonestly and fraudulently misappropriated and converted for his own use and for the use of applicant Muzammil Niazi, Government property which was entrusted to him and was under his control.

Secondly, that applicant Javed Burki misused his authority so as to gain benefit or favour for himself and for applicant Muzammil Niazi and also wilfully failed to exercise his authority in order to prevent an undue benefit and favour for himself and for applicant Muzammil Niazi. Thus the applicants have been alleged to have committed offences under sections 9 (a)(iii)(iv) and (vi) of the NAB Ordinance viz that of corruption and corrupt practices punishable under section 10 thereof.

3. In support of Bail Application No,212 of 2003 entitled Javed Burki v. The State Mr.Abdul Hafeez Lakho appearing for the applicant has submitted the following.

4. Learned counsel has firstly submitted that the project of manufacturing the Yasoob Truck was tailor made for the Army as is evident from the presentation made to the Chief of Army Staff on 9- 9-1989 in which the same was approved and the green signal given for going ahead with it.

Thereafter the Prime Minister of Pakistan issued a directive dated 10-5-1991 endorsing the project whereby it was ordered that, inter alia, all the Yasoob vehicles should fulfil the demand of the Armed Forces within the next 5-7 years, promotion to be made in the civilian market and funds to be made available from the appropriate sources. Thereafter at a meeting held on 28-7-1991 in the Chief of Army Staff's Conference Room it was decided that the project should be a joint venture having a private and professional management and that the Army would purchase at least 3000 vehicles in order to make it viable. Thereafter an agreement was entered into between the Army through DGMP and applicant No,1 as Chairman of PACO for the supply of 3000 vehicles which is dated 19-5-1992. Hence in order to implement the project on 10-3-1992 a Joint Venture Agreement was entered between Pakistan Motor Car Co. (Pvt.) Ltd. (PMC) a wholly owned unit of PACO and Management Partners (Pvt.) Ltd. (MPL) which had been formed by the ex-employees of PACO/Trailer Development Corporation which stipulated the establishment of a company namely Transmobile Ltd. (TML) for manufacturing Yasoob Trucks. Per learned counsel, all the foregoing events had the blessings of the Army, the Ministry of Production and Finance. Secondly, all the actions/decisions in order to implement the project were taken by the Board of Directors of PACO/TML and hence individual responsibility as far as the applicants are concerned vis-a-vis the allegations contained in the Reference cannot be foisted upon them. Learned counsel has emphazied that right from the very beginning things were done in a transparent manner which would be borne out from the record in the sense that all concerned knew exactly what was going on as far as the project is concerned. Per learned counsel the reason why TML suffered huge losses was due to the non-fulfilment of contractual obligations by the Army as only orders were placed for about 600 vehicles as against the agreed quantity of 3000. Even otherwise, various amendments were made to these orders whereby the Army changed the specifications etc: of the vehicles due to which the Company suffered further losses. Per learned counsel the Company had no option but to fulfil the desires of the Army since primarily the vehicles were made for the Army although some civilian applications were conceived.

5. As regards the allegations made in the Reference itself learned counsel has submitted that in principle these are mala fide in nature as they are directed against the individuals whereas admittedly all the decisions were taken by the Board of Directors of either TML or PACO. Secondly, per learned counsel the entire evidence in the matter is documentary and the case is being evaluated after the event viz. 9 years down the line on hindsight and hence it is very easily to create a criminal case ex post facto. Learned counsel has laid great stress upon this aspect of the matter and has submitted that events should be examined at the time when they unfolded in order to correctly evaluate them and establish criminal liability if any. Thirdly, learned counsel has submitted that per the police statements of the P.Ws. Which are available in the investigation report, these relate to the factual aspects of the matter and hence cannot be accepted as prima facie evidence so as to connect the accused to the crimes in question.

6. As regards the allegations against the applicant viz formation of TML through a Joint Venture Agreement between Pakistan Motor Car Company (PMC) and Management Partners (Pvt.) Ltd.

(MPL) in violation of Prime Minister directive dated 30-5-1991 and the hijacking of the project by the applicants through TML at the cost of TDC & PACO which had contributed immensely towards the same, learned counsel has firstly submitted that this was approved by the Board of PACO and secondly it was in accordance with the decision taken at the Chief of Army Staff's meeting held on 28-7-1991. Whereby the project was envisaged in the private sector so as to ensure maximum efficiency etc. Without intermeddling by Government functionaries. Further as regards the hijacking of the project at the cost of the TDC and PACO, per learned counsel it is a matter of record that TDC did not have either the facilities or the expertise to undertake the project which entailed massive infrastructure plus precise engineering skills etc. In this respect learned counsel has referred to the police statement of P.W. Abdul Rauf who gives the background and creation of TML and how it functioned thereafter.

7. As regards the allegations in the Reference vis-a-vis applicant Muzammil Niazi viz. That he was posted for only 4 days to PACO from his assignment as MD TDC just to enable him to get benefits of the Golden Handshake Scheme in PACO, learned counsel has submitted that as this was available to all concerned, no mens rea can be attached to the same at least not at this stage without a deeper probe into the matter which can only be done by the trial Court. Next as regards the allegation vis-a-vis obtaining the funds for the project through Mr. Kamal Azfar then Governor of Sindh learned counsel has submitted firstly that these are in the nature of recommendations only which the Governor made to the Federal Government as the project was situated at Karachi in the Province of Sindh. Secondly regarding the allegation of manoeuvring the consent of the Federal Ministry of Industries to provide Rs,450 Millions through sale of PACO shares, learned counsel has submitted that this had the blessing of PACO's Board of Directors and the decision was taken in order to save the Company which had run into huge losses solely due to the Army's non-fulfilment of its contractual obligations.

8. Finally with regard to donations to various clubs/institutions by applicant Javed Burki learned counsel has submitted that most companies including State-owned companies like PIA and PSO do give donations to support various sports viz. Hockey, Cricket and Squash hence there was nothing unusual in PACO sponsoring some Golf Tournaments etc. In any event per learned counsel, there was no mens rea at all involved in giving such donations as neither were these for the benefit to applicant Javed Burki and nor were these given for any ulterior purpose or motive but purely to support the game of Golf/Polo etc.

9. Finally with regard to incurring of exorbitant expenses which were billed to TML, learned counsel has submitted that these were legitimate expenses and even otherwise these could not be evaluated without a deeper probe.

10. Hence for the all the foregoing reasons learned counsel has submitted that at the most the allegations against applicant Javed Burki could be a case of mismanagement whereas in actual fact the Company/project suffered losses due to no fault of the said applicant. Learned counsel therefore prayed that applicant Javed Burki be enlarged on bail.

11. Mrs. Ismat Mehdi appearing for applicant Muzammil Niazi in Criminal Bail Application No,118 of 2003 has firstly submitted that as regards the formation of TML, the record would show that this was as a result of the cooperation between the Army and PACO per the meeting of 9-9-1989 held on the Conference Room of the Chief of Army Staff. In this connections she has referred to a number of documents filed alongwith the bail application including minutes of the said meeting, letter dated 28-3-1991 from applicant Javed Burki to the Secretary, Defence Production Division regarding the orginization and finding of the Yasoob Project, minutes of Chief of Army Staff's conference dated 28-7-1991 whereby the proposal was first floated regarding the Joint Venture between the Army and PACO and the need for private and for professional management, letter dated 7-10-1991 from applicant Javed Burki to the Secretary, Ministry of Production regarding formation of TML wherein a full disclosure was made minutes of PMC's Board meeting where again the formation of TML was thoroughly discussed and approved as well as the Joint Venture Agreement between TML and PMC which was largely attended viz. By applicant Javed Burki and representatives from PACO Secretary, Ministry of Production and senior officers of the Pakistan Army. Learned counsel also referred to the other documents which have been alongwith the bail application viz. Agreement between PACO and Army which envisages the incorporation of TML and finally she has referred to a chart showing PACO's investment in other private sector entities. Hence per learned counsel it is quite clear from the record as it stands at present that TML was incorporated with the blessing of the Army, the Ministry of Production and all other concerned including PACO. Consequently it cannot be said that TML was conceived clandestinely or with criminal intent for the purpose of taking control of Government monies with a view to applying them at the whims of the applicant as well as for misappropriation of the same for the applicant's own use.

12. As regards the allegation of forcible closure of TDC, learned counsel has submitted that in 1987 as per the report of Mr.Kanwer Idrees (the then Chairman of PACO) on the re-virtualization of TDC, its accumulated losses were in the range of Rs,43.7 .Million, and it was envisaged that with the appointment of applicant Muzammil Niazi as MD of TDC and certain other remedial measures, the Company could be turned around. Hence, Muzammil Niazi was so appointed on 27-9-1987.

Thereafter applicant Javed Burki had vide letter dated 26-6-1991 proposed to the Ministry of Production, that in order to implement the Prime Minister's directive on the Yasoob Project certain steps needed to be taken which included the construction of a modern manufacturing facility at Port Bin_ Qasim Industrial Area, Karachi as well as reorganization of TMC as a Joint Venture between PACO, Professional Management Group and DFI. As per the annexure to the said letter reasons have been given as to why the PACO franchises currently assigned to TDC are being transferred to PMC viz. Since TDC was to be privatized and in this respect royalty was paid to TDC per the financial statements of TML. Thereafter per learned counsel it was decided that since the facilities of TDC's were inadequate a new factory site needed to be built for the Yasoob Project which was done. Finally learned counsel has submitted that per the MOU between TML and TDC the premises of TDC were rented out to TML. As regards the unpaid rents by TML, learned counsel has submitted that in turn TML also has a claim against TDC for which purpose Suit No,589 of 1998 has been filed by TML in this Court. Hence learned counsel has submitted that these are inter company disputes/claims and would be eventually decided by this Court. Consequently no criminal intent or liability can be affixed on individuals for these corporate matters.

13. Next learned counsel has referred to the allegation regarding receipt of golden handshake amount by applicant Muzammil Niazi and has submitted that there is nothing unlawful about it as others have also received the same.

14. As regards the allegation with respect to excessive salaries and perks enjoyed by Muzammil Niazi and his associates in TML, learned counsel has submitted that these were in the line with the remuneration received by senior executives in the private sector and had been sanctioned by TML in various Board meetings. Learned counsel -has in this respect also referred to the Comparative Chart of the Pay Packages enjoyed by TML executive and others in the private sector which would show that the latter were very reasonable. She has further submitted that when Muzammil Niazi joined TDC from Al Futtain Group his pay package was much higher.

15. As regards the allegation vis-a-vis unauthorized payment and contributions to clubs etc. Learned counsel has adopted the arguments of Mr.Abdul Hafiz Lakho.

16. In view of the foregoing facts and circumstances, learned counsel has prayed that bail be granted to Muzammil Niazi particularly as the entire case of the prosecution is based on documentation alone and the investigation has now been completed.

17. In reply Mr.Khalid Siddiqui learned Special Prosecutor, NAB has firstly submitted that a brief recapitulation of the events would abundantly establish at this stage the criminal intent of the applicants. In this regard he has firstly submitted that the incorporation of MPL on 27-12-1991 by Muzammil Niazi and his associates was ipso facto unlawful since at that time the latter was a Government servant and he could not enter into any business transaction or own shares of private companies per the Government Servants Conduct Rules, 1967. Thereafter the signing of the Joint Venture Agreement between PMC and MPL and the floating of TML was in itself mala fide as the Joint Venture was heavily in favour of MPL since PMC was to provide the funds and MPL was to manage it. Then on 26-3-1992 TML was incorporated and within one week the elections were held whereby Javed Burki was elected as Chairman and Muzammil Niazi as MD. Again this was unlawful since being Government employees they could not at the same become the employees of private companies and in this respect no permission was taken from the Government. Then on 19-54992 the agreement for the sale of Yasoob Trucks was signed between the Ministry of Defence and PACO and Rs,1.143 Billion was given as an advance for this purpose. The said agreement envisaged the assignment of the same to TML which was done on 15-6-1992 and on the very same date the premises of TDC was rented out to TML. All these events per learned counsel would show that the applicants in a pre-planned manner had conspired together to usurp Government funds in order to put them to their own use. Thereafter on October 15, 1992 Muzammil Niazi was posted to PACO where he obtained a golden handshake and four days later he resigned on 18-10-1992. This per learned counsel is a glaring example of the favouritism shown by Javed Burki to the latter. Again on 15-10-1992 MOU was signed between TDC and TML regarding renting out of TDC premises. As per the Board meeting of TDC held on 31-12-1992 an opinion was expressed that this was an unfair transaction and a recommendation was made for revision thereof but this was never done.

Besides the advance from the Army, TML also obtained loans from Banks and other DFIs on the basis that it was a PACO Company which in itself was mala fide. Per learned counsel the investment of MPL (owned by Muzammil Niazi and his associates) in TML was only Rs,9.7 millions whereas much more was withdrawn from the Company in the shape of perks and privileges alongwith wasteful expenditure which had nothing to do with the Company's objectives at all. Per learned counsel due to these and other reasons the Company could not fulfil the orders placed by the Army and hence fresh funds were injected by Javed Burki through sale of PACO shares which in itself was unlawful as proper disclosure was not made to the Government regarding the affairs of TML which was running into huge losses.

18. Next learned counsel has submitted that public monies were squandered by the applicants in a heartless manner which is evident from the fact that the salary package of TML executives was highly excessive compared to that in. The Government Sector. In this connection learned counsel has further pointed out that "Yasoob House" was taken on rent for the residence of the Chairman of TML viz. Javed Burki at an exorbitant rent of Rs,63,000 per month where this applicant resided for over two years. On the other hand, his rent entitlement as a Government servant was only Rs,13,600.

Further TML invested Rs,2 million as equity participation in the Arabian Sea Golf and country club located at Karachi and spent an amount of Rs,25 lacs on the Yasoob Golf Tournaments. So also an amount of Rs,25 lacs was given to Pakistan Squash Federation and Rs,2,30,000 to the Rawalpindi Golf Club. Further the Company sponsored a number of Polo Tournaments etc. This per learned counsel was in violation of Government directives in this regard viz. Donation and contributions by autonomous bodies cannot be made unless they directly promote their business and the authority to make the donations exists in their statutes or these are authorized by the Ministry of Finance (per handbook on Autonomous Bodies). Learned counsel has also submitted that the applicants incurred a number of expenditures on corporate credit cards issued to them by TML viz. On clothing, golf sets etc. So also two employees were hired from USA viz. Mr.Shakeel Rizvi and Mr.Anwar Ahmed, and TML paid for their relocation to Karachi along with their families, which was unprecedented in a public sector organization, and hence a rampant misuse of funds.

19. Hence for all the foregoing reasons learned counsel has submitted that the prosecution has been able to establish a prima facie case against the applicants in terms of section 9(a)(iii) (iv) and (vi) of the Accountability Ordinance and now it was for them to discharge the burden of proof as per the case of Asfand Yar Wali Khan v. Federation of Pakistan (PLD 2001 SC 607).

20. Mr. Anwar Muhammad Tarique learned DPG, NAB has submitted the case-law on which the prosecution relies. He has firstly referred to Siddique-ul-Farooq v. The State (PLD 2002 Karachi 24) wherein gifts of mango crates sent by the appellant who was the Chairman of House Building Finance Corporation to those who were in power was held to be not for the purpose of the Company hence, conviction was upheld. Next learned DPG has referred to the case of Imtiaz Ahmed v. The State (PLD 1997 SC 545) wherein a distinction has been drawn between an offence committed by an individual in his private capacity and one committed in an official capacity and it was held that in the latter case bail could be refused even if the statutory bar in section 497, Cr.P.0 was not attracted provided otherwise the Court came to the conclusion that the accused could prima facie be connected to the crime in question. The learned DPG has stressed that the applicants stand accused with white-collar crimes which were indeed very difficult to detect and thereafter prove through cogent evidence. Hence it is for this reason that the burden of proof has shifted to the accused once the prosecution has been able to establish a prima facie case per section 14(d) of the NAB Ordinance. Next learned counsel has referred to the case of Samir Rauf v.

The State (Cr.P.L.A. 175 of 2002) wherein the Hon'ble Supreme Court came to the conclusion that the crime was a very sophisticated one pertaining to juggling of banking transactions. Hence bail was refused on the strength of Imtiaz Ahmed's case (supra). Learned DPG has further submitted that the offences with which the applicants are accused are violation of section 9(a)(iii)(iv) and (vi) of the NAB Ordinance read with sections 23, 24 and 405 of the P.P.C. Viz. Causing wrongful loss which is irrespective of gain. Hence the very act of causing such wrongful loss is enough for conviction and this has nothing to do whether a corresponding gain was made or not. Learned DPG has therefore submitted that the prosecution has laid enough material on the record to show that wrongful loss was caused to the Government by the applicants. In this regard he has referred to State v. Younis Dalia (PLD 1998 Karachi 159), as well as the case of Mansoorul Haq v. The State (Criminal Bail Application 966 of 2002) and Asher John v. The State (2002 MLD 603) wherein bail was refused to the applicants in identical circumstances.

21. Next the learned DPG has submitted that the bail applications are not maintainable under section 497, Cr.P.C. As according to Asfand Yar Wali Khan's case (supra) the High Courts can only grant bail in the NAB cases in writ jurisdiction. For this proposition he has also referred to Ch. Zahur Elahi v. The State (PLD 1977 SC 273) and M. Saeed Mehdi v. The State (2002 SCMR 282). Finally learned DPG has submitted that the trial is about to start and if bail were granted, the applicants would be able to influence the same as they had remained senior and powerful Government officials.

22. In rebuttal Mr.Abdul Hafeez Lakho has again reiterated that the material placed on record does not establish the individual acts of the applicants since everything was done in accordance with the directions of the Board Meeting of PACO/TML. Further per learned counsel the reference does not conform to the investigation report inasmuch as only six charges are enumerated in the latter whereas the former contains considerably more. Similarly in the investigation report there is no mention at all of undue use of authority which forms the substance of the Reference. As regards the illegality of the donations etc. Made by the applicants to various clubs/organizations, firstly per learned counsel vide the Finance Division Office Memorandum dated 5-9-1982 pertains to other organizations viz. Not established under the Companies Law or under statutory provisions. As PACO has been established as a limited Company therefore it is not covered. Furthermore learned counsel has submitted that every sport is patronized by National Institutions viz. Army, PIA, PSO, etc. Therefore, it was not unusual or extraordinary for PACO/TML to have patronized the game of Golf/Polo etc. In this connection learned counsel has distinguished the case of Siddiq-ul-Farooq v.

The State (supra) as therein this Court came to a positive finding that the gift of mango crates given to various VIPs by the appellant were for no other purpose than to please them so as to obtain undue favours which have nothing to do with the HBFC's objectives/business. In the present case donations were given to various organizations viz. Squash Federation of Pakistan, Golf Clubs, Polo Clubs in order to promote these games. Hence the mere factum of donations at this stage would not be sufficient to establish mens rea without positive proof that this was done malafidely in order to promote the applicants' personal advancement. Next learned counsel has referred to the allegations regarding use of corporate cards by the applicants for their personal expenses and submitted that merely by relying on a single voucher pulled out from the accounts of the Company in this regard is insufficient to establish even prima facie that malafides/mens rea is involved. For this purpose the entire accounts of the Company would have to be examined when it may be discovered that the Company was reimbursed by the applicants for such expenses. Even otherwise per learned counsel the expenses involved only a few thousand rupees. Next learned counsel has referred to the allegation regarding employment of certain Pakistani expatriates settled in USA and their relocation to the country alongwith their families. Learned counsel has submitted that this was nothing new and had happened before and after this event. He has given the example of the current Finance Minister of Pakistan who was picked up from Citibank as well as a previous Chairman of Central Board of Revenue who was seconded from the World Bank. Learned counsel has also reiterated that the formation of TML as well as the release of funds to TML through the sale of PACO shares was a transparent process and had the blessings of all concerned. Finally as regards Yasoob House learned counsel has submitted that TML is a private limited company and rented a house for its Chairman which was occupied by Javed Burki as such. This may be a irregularity for which at the most disciplinary action could have been initiated but not criminal proceedings.

23. As far as the maintainability of the bail applications is concerned learned counsel has submitted that as per section 9(b) of the Ordinance the High Court has power under section 497, Cr.P.C. To consider bail. Per learned counsel section 9(b) was amended after the decision in Khan Asfandyar Wali v. The State (supra). Even otherwise learned counsel has submitted that the matter becomes of academic interest only since this Court has all the powers to treat the bail applications as petitions under Article 199 of the Constitution per Khan Asfandyar Wali v. The State (supra). In this regard he has also referred to the case of Zulfiqar Ali v. The State PLD 2002 SC 546.

24. As regards the case of Sameer Rauf (supra), per learned counsel this was a Bank fraud case whereby the allegations against the appellant were siphoning of EOBI funds in his capacity of CEO of Republic Securities Ltd. And investment of the same in various securities which were lost. Thus a prima facie case had been established against Sameer Rauf which is not so in the present matter.

Learned counsel has also cited Abdul Qadir v. Federation of Pakistan 2002 SCMR 1488 where it was held that the entire Board of the Company is responsible for the acts of the Bank and not individuals. Hence per learned counsel how could the applicant be held responsible for the acts of the Company when the entire evidence consists of Board meetings where such acts were authorized. Learned counsel has also referred to Manzoor v. The State PLD 1972 SC 81 for the proposition that at the bail stage the benefit of every doubt must go to the accused. He has further relied upon Anwar Saifullah Khan v. The State PLD 2000 Lah. 564 wherein bail was granted as massive documentation was involved which the accused could not peruse and prepare their defence while sitting in jail as in the present case.

25. Regarding the import of section 9(a)(vi) of the Ordinance which proscribes the misuse of authority by a holder of a public office so as to gain any benefit or favour for himself or any other person or to render or to attempt to do so, per learned counsel, this does not mean misuse per se, but for the purpose of gaining benefits which element is totally missing from the case. Similarly per learned counsel wilful failure to exercise authority again must relate to a corresponding loss which has also not been established. For this proposition learned counsel relied upon the case of Siddiqul Wahab v. The State (supra). In this connection learned counsel has further cited Tariq Javed Afridi v. The State PLD 2002 Lah. 233 wherein it was held that mens rea would have to be established insofar as section 9.(a)(vi) of the Ordinance is concerned which would be found in two elements firstly in the conscious misuse of authority and secondly thereby gaining of any benefit or favour by the accused for himself or for any other person. Again in Anwar Saifullah Khan v. The State PLD 2002 Lah. 458 it was held that the offence of misuse of authority per section 9(a)(vi) was not one of strict liability and hence mens rea had to be established in order to prove the charge. Finally per learned counsel in the case of Javed Hashmi v. The State 2003 PCr.LJ 266 the foregoing interpretation vis- a-vis various provisions of the NAB Ordinance were confirmed.

26. For all the foregoing reasons learned counsel has prayed that the applicants be granted bail as now the investigation has been completed. Further learned counsel has submitted that both the applicants particularly applicant No,1 Javed Burki had remained a Senior Government Official and throughout, his career has remained spotless except for the present unjustified, unlawful and mala fide charges against him.

27. I have heard all the learned counsel, as well as the learned DPG, NAB and have gone through the rather voluminous documentation placed on the record. My conclusions are as follows.

28. It would be seen that the case of prosecution is based upon the alleged abuse of authority and wilful failure to exercise such authority by the applicants in their capacity as public servants for the purpose of gaining benefits/favours/pecuniary advantage for themselves and. Their associates which amounts to the offence of corruption and corrupt practices per section 9(a)(iii)(iv) & (vi) of the NAB Ordinance, punishable under section 10 thereof. Such abuse of authority is related to the Yasoob Project designed to manufacture trucks for the Armed Forces, which per the prosecution was to be managed in the public sector viz. Through PACO and its associated companies viz. TDC/PMC; however, despite clear directions in this regard, the applicants conspired with each other and managed to form a Company in the private sector viz. TML through a Joint Venture Agreement between PMC and MPL (the latter company being floated by applicant Muzammil Niazi and his associates). Thereafter, the applicants malafidely and with criminal intent managed to have the agreement between the Army and PACO for the manufacture of Yasoob Trucks assigned to TML and hence gained control over public monies. Per the prosecution, the applicants then proceeded .To spend such monies at their whims and incurred huge expenses in the shape of excessive salary packages for TML executive, donations to Golf and Polo Clubs and other organizations, personal expenses which were charged to the Company, hiring of executives from USA and paying for their relocation to Pakistan alongwith their families, leasing of Yasoob House at an exorbitant rent for applicant Javed Burki etc. Additional charges levelled against the applicants is the clandestine injection of enormous amounts into TML which was already in the doldrums again at the cost of the exchequer and obtaining of unlawful golden Handshake by Muzammil Niazi.

29. As to the incorporation of TML and the assignment of the Yaqoob Contract to it, in my view, at this stage, it appears that this exercise had the blessing of all concerned and was transparent in nature. In this respect reference can be made to the minutes of the meeting held in the Chief of Army Staff's Conference Room dated 28-7-1991 whereby it was proposed that the project should be a joint venture between the Army and PACO alongwith private and professional management.

Earlier vide letter dated 28-5-1991 addressed by Javed Burki to the Secretary, Defence Production a brief on the Yasoob Project was attached which envisaged inter alia that the management would consist of a professional management group through a joint venture. This was followed by another letter from Javed Burki dated 26-6-1991 addressed to Secretary, Ministry of Production enclosing a progress report on the implementation of the Prime Minister's directive regarding the project whereby it was proposed that PMC would be reactivated to handle the Yasoob Project as a Joint Venture Agreement between PACO and Professional Management Group and DFIs; the equity being shared 40:60 respectively. Thereafter vide letters dated 7-10-1991 and 5-1-1992 from applicant Javed Burki to the Secretary, Ministry of Production, full disclosure was made regarding me corporate structure of TML. Thereafter at the Board Meeting of PMC held on 12-2-1992 the Joint Venture Agreement between MPL and PMC was approved which envisaged the incorporation of TML and vide minutes of the Board Meeting held on 1-7-1992 Javed Burki alongwith others were nominated to the Board of TML as PMC Nominees. Finally, at the Boarding meeting of PMC held on 13-10-1992 the Joint Venture Agreement was ratified. It would also be seen that per the agreement dated 19-5-1992 signed between the Army and PACO for the supply of Yasoob Trucks it has been specifically provided per clause 19(e) of the Special Conditions of Contract that PACO would be at liberty to assign the contract to a company especially formed for the project under the name Transmobile Limited. In view of the foregoing facts and circumstances, it cannot be said at this stage, that the formation of TML was a premeditated and preplanned exercise undertaken by the applicants for the purpose of clandestinely and unlawfully gaining control over public monies with the ultimate objective for applying the same to their own use.

30. As regards the allegations against the applicants of taking over the Project from TDC which had produced the first prototypes of the Yasoob Truck it would be seen that again this allegation appears at his stage to be unfounded. In this connection, reference can be made to the various letters and Minutes of Board Meetings of PMC/PACO wherein it is envisaged that since ultimately TDC was to be privatized it would not be in the interest of the project for this Company to manage it/manufacture the vehicles. It was also contemplated that in order to handle a project of this size, a new factory site was needed which was ultimately built at Port Qasim Area. Similarly, as regards the unpaid rents etc., outstanding against TML, these appear to be inter-Company disputes as TML also has claims against TDC. Consequently, I am of the opinion that at this stage it cannot be said that the facilities of TDC were forcibly taken over by the applicants which ultimately led to the bankruptcy of TDC.

31.As regards the golden handshake amount received by applicant Muzammil Niazi from PACO, it is not the case of the prosecution that such scheme was not available in the Company. The only allegation is that Muzammil Niazi was transferred from TDC to PACO and within four days thereof after availing of the Golden Handshake Scheme he resigned. Prima facie, if the said scheme was available and lawful, it cannot be said at this stage that availing of the same by Muzammil Niazi amounted to an abuse of authority by Javed Burki, particularly as thereafter the former was appointed as M.D. Of TML.

32. The next allegation against the applicant is that a huge amount of Rs,450 million was invested at the behest of Javed Burki in T'ML without making proper disclosure etc., and the mala fide support obtained for this investment through Mr. Kamal Azfar the then Governor of Sindh who had no connection at all with the project it being a venture of the Federal Government. In this connection it would be seen firstly that merely because such recommendation has been authorised by the then Governor of Sindh and the project was functioning under the Ministry of Production whereas the main customers was the Ministry of Defence, it cannot be said that the same was procured malafidely or with criminal intent. As regards the actual injection of Rs,450 million into the project, this also appears at this stage that the same had the consent of all concerned at the high level meeting held at Islamabad whereby PACO was allowed to sell shares held by it in other companies and apply the proceeds for the purpose of investment in TML.

Consequently, yet again, I am unable to perceive or for that matter conclude that Javed Burki manoeuvred or otherwise clandestinely managed to get the requisite approvals for sale of PACO shares etc. And with criminal intent purposely to apply it towards TML which he knew to be a lost cause, as alleged by the prosecution.

33. Finally, as regards the allegations of plundering TML by the applicants in the shape of excessive expenditures etc., it would be seen that these expenses were not incurred for the benefit of the applicants. These include pay packages of TML executives, investment in Arabian Sea Country Club, sponsoring the game of Golf, Polo and Squash, donations to certain organizations, purchase of golf sets, hiring of executives from USA etc. Prima facie as far as the pay packages of TML executives are concerned these were recommended by the consultants M/s. A.F. Ferguson & Co.

And were comparative with those enjoyed by executives in the private sector. Hence, at this stage, this aspect of the matter appears to be a corporate act duly supported by the Board of TML for which individuals cannot be taken to task. Secondly, with regard to sponsoring various sports etc., it is common knowledge that most sporting activities in the country as well as overseas are supported by the corporate sector and in this respect donations are given for the holding of tournaments etc. Hence, at this stage, it cannot be said that the donations given by the applicants to various organizations were for an ulterior motive with a view to their own personal gain. In this respect the case of Siddiq-ul-Farooq (supra), can be distinguished as there a positive finding was recorded by this Court that the gifts given by the appellant to various high Government officials were for no other purpose than to advance his own personal interest which would be in violation of section 9(a)(vi) of the NAB Ordinance. Finally, as regards the hiring of executives from USA and paying for their relocation to Pakistan alongwith their families, it would be seen that this is not unprecedented as in a number of cases senior Government officials have been appointed from the private sector to head various Government Departments. Again, therefore, I am of the view that such appointment by the Company and the expenses incurred thereto cannot be faulted on this score alone particularly at the bail stage without a deeper probe.

34. In sum therefore it appears that the allegations against the applicants arise out of the acts/transactions which are of a corporate nature and for which authorizations are available through Board Resolutions of the various companies involved. It further appears that right from the inception of the project, the Army, the Ministry of Production and PACO/its associated companies were fully informed of its size and complexity and the fact that it was totally dedicated for the use and consumption of the Armed Forces and so also that huge financial outlays were involved. It appears that due to a number of reasons, the project fell into the doldrums and despite massive capital assistance, it could not be turned around.

35. As far as the law applicable to the matter is concerned, it would be seen that the prosecution has alleged that this was due to the acts of commission and omission of the applicants whereby they put Government monies entrusted to them to their own use, unlawfully obtained for themselves/other persons pecuniary advantages and misused their authority so as to gain favours or benefits for themselves or any other persons and so also failed to exercise such authority so as to prevent the grant of such favour or undue benefit (section 9(a)(iii), (iv) and (vi) of the Ordinance). In this respect it would be seen that the above offences essentially incorporate an element of mens rea which as already observed above is missing insofar as the allegations contained in the Reference are concerned with regard to the transactions enumerated therein. In this connection reference can be made to the case of Tariq Javed Afridi v. The State (supra) whereby a learned Division Bench of the learned Lahore High Court have held that insofar as section 9(a)(vi) of the Ordinance is concerned a mere erroneous order or lack of jurisdiction on part of public functionary would not amount to an offence thereunder. It would have to be shown by the prosecution that, the order N passed by the accused was with the objective of gaining benefit or advantage for himself or for any other person. Since the offence is not one of strict liability per se. Again in Anwar Saifullah Khan v. The State (supra) another learned Division Bench of the Lahore High Court came to the conclusion that quote "misuse of authority vis-a-vis section 9(a)(vi) of the Ordinance means the use of authority or power in a manner contrary to law or which reflects an unreasonable departure from known precedents or customs. Hence to establish the charge of misuse of authority two essential ingredients would have to be present, conscious misuse of authority and secondly gaining of any benefit or favour by the accused for himself or any other person A head of the department or institution may sometime exceed his normal administrative powers in the interest of the institution and under some wrong impression about his authority on the basis of a practice in vogue or on 0 account of a policy framed by his predecessor and continuance thereof without any objections more particularly when it is in the interest of smooth working of the institution. Every such irregularity is not to be treated as misuse of authority and more particularly is not to be treated as criminal offence. It is an established principle of the criminal administration of justice that before convicting any person the prosecution is required to establish beyond any reasonable doubt, all the ingredients constituting an offence and if there is any lacuna, infirmity or doubt it has always to be resolved in favour of an accused person".

Unquote.

36. As far as the cases cited by the learned DPG, NAB are concerned, it would be seen that in the case of Sameer Rauf v. The State (supra) the Hon'ble Supreme Court came to the conclusion that evidently a huge amount had been misappropriated from the funds of EOBI which fact had been sufficiently established by the prosecution. Further it was held that this amount had been siphoned into the account of Republic Securities Ltd. By the absconding accused and so also the appellant who was Chief Executive of this Company was involved. Hence bail was refused. In my humble opinion this case can be distinguished from the case at hand simply for the reason that the Hon'ble Supreme Court came to the conclusion that the appellant/accused prima facie was connected to the crime as a number of documents had been placed on the record to establish the same. Again in the case of Mansoorul Haq v. The State (supra) a learned Division Bench of this Court held that the applicant could be connected to the crime in question viz. Over-payment for purchase of ships by PNSC of which he was the Chairman to the tune of Rs,1851,743,000. It was concluded by the learned Division Bench that a perusal of the documents placed on the record would prima facie show that the applicant with criminal intent and mala fide motive recommended the purchase of the ships in question at a much higher price than the prevailing market rate and thus abused his authority and/or wilfully failed to exercise the same for the purpose of making an unlawful gain which resulted in a corresponding loss to the exchequer. This recommendation was made despite a positive finding by the officers of PNSC that at least one of the ships was not fit for purchase as it had engine problems. Again in my humble opinion the aforementioned case is distinguishable from the present one as prima facie I have reached the conclusion that the transactions which have been made the basis of the Reference coupled with the documents on the record, do not show the mens rea of the applicants at least at this stage. Similarly, in the case of Asher John and Younis Dalia (supra) learned Division Benches of this Court come to the conclusion that the accused could, prima facie, be connected to the crime in question and hence these cases are again distinguishable.

37. Finally, as regards the controversy whether this Court could entertain a bail application in NAB cases, in my view this is not an academic question after the decision of the Hon'ble Supreme Court in Khan Asfandyar Wali's case (supra) whereby it has been held that bail could always be granted under the Constitutional jurisdiction of this Court.

38. For all the foregoing reasons, I would allow the bail application provided the applicants submit solvent surety in the amount of Rs,10 million each alongwith P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.

(Sd.) SARMAD JALAL OSMANY, J I have written a separate note.

(Sd.) REHMAT HUSSAIN JAFFERI, J.--I have had the privilege of going through the order passed by my learned brother, but with utmost respect, I have not been able to persuade myself to agree with the outcome of the bail applications. The facts and arguments advanced by the parties' counsel, Special Prosecutor and DPG have been mentioned in the order of my learned brother, therefore, the same are not given.

Before discussing the allegations, it is pointed out that a bail can be granted to an accused person if there are reasonable grounds for believing that the accused is not guilty of the offence charged with. Therefore, it will be seen as to from which material the reasonable grounds or otherwise can be gathered. This point was considered by the Hon'ble Supreme Court of Pakistan in a case of Government of Sindh v. Raees Farooq 1994 SCMR 1283. The relevant para. Of the observation of the Hon'ble Supreme Court of Pakistan as appear at page 1295 is as under:- "A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which, if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. As observed in Ch. Abdul Malik v. The State PLD 1968 SC 349, however, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime.

If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. Keeping in view the above principle of law for the grant or refusal for bail, I will examine the allegations of the prosecution levelled against each applicant.

FORMATION OF T.M.L. On the above point 'the prosecution have collected oral and documentary evidence. They have relied upon 4 witnesses namely Abdul Rauf Hafiz, G.M. Finance PACO. Abdul Bari M.D., PMC, Parvez Saeed Director, Furgosen Associates Pvt., Kunwar Idris Ex-Chairman PACO, Tajmul Haq and Zubair Kidwai, Ex-Secretary, M.D., TDC and various documents.

The record reveals that a letter dated 1-12-1987 was sent by Ex-Chairman, PACO to COAS for patronising the PACO. Subsequently on 26-9-1989 a presentation was made by the MD, TDC applicant Muzammil Niazi to COAS for developing a series of military vehicles for Pakistan Army by PACO by using all their 'facilities. Before that a presentation was made by MD, TDC on 18-7-1989 to COAS as clear from the minutes of the meeting dated 26-9 1989. At that time also MD, TDC was the applicant Muzammil Niazi. On 26-8-1990, the applicant Javed Burki was appointed as Chairman of PACO. Within few months of his appointment the process of formation of TML started when for the first time on 27-2-1991, the applicant Muzammil Niazi as MD, TDC sent a secret and confidential letter to the applicant Javed Burki, Chairman, PACO proposing therein for formation of a Joint Venture Agreement (JVA). On the said letter applicant Javed Burki wrote 'Discussed. Go ahead, given for discussion with CDC'. Thus, the applicant Muzammil Niazi already knew that the process of manufacturing of Yasoob Trucks was in process and Pakistan Motor Company (PMC) was in the picture, therefore, the proposal was floated by applicant Muzammil Niazi for formation of JVA which was agreed by the applicant Javed Burki. In another meeting dated 28-5-1991, it was the applicant Muzammil Niazi who again floated proposal for formation of JVA because he already knew that he had the blessings of the applicant Javed Burki and the applicant Javed Burki also approved it in the meeting and then it was agreed for formation of JVA. Within few months, after getting the approval of formation of JVA, on 8-1-1992, the applicant Muzammil Niazi alongwith other employees of PACO formed a private company in the name of Management Partners Ltd. In which the applicant Muzammil Niazi had majority shares of the 32.25% of the total shares and other employees of PACO had also shares. As the employees of PACO had formed the MPL, therefore, it appears that the name of the firm was chosen so as to give an impression that it has been formed by the management which is clear from the name of the firm 'Management Partners Ltd.'. Then MPL and PMC made JVA on 10-3-1992. Therefore the process started further.

From the above position, it appears that both the applicants had joined hands together in order to take over the control of new assignment of Yasoob Trucks through TML. It will be further seen that it was agreed in the agreement of formation of JVA that if the paid-up capital of MPL in TML is less than 15% then JVA will be terminated. In the year 1994, the said capital of MPL was reduced to 10% and the matter was discussed in the 16th Board of Directors' meeting of PMC held on 30-5-1994, in which it was decided that JVA in between PMC and MPL was liable to be terminated. In that meeting both the applicants were present which was presided over by the applicant Javed Burki. In the minutes of 17th Board of Directors meeting, there was an agenda regarding follow up of the last Board's meeting but it was mentioned under the said agenda that 'there was no point arising from the last Board meeting which required follow up'. Thus, the decision of last Board meeting with regard to termination of JVA was not implemented. As such the JVA was allowed to continue, which ultimately caused loss to Public Exchequer..

From all these facts it appears that the intention of both the applicants was to take over the control of Yasoob Trucks through TML with ulterior motive which was formed by the applicant Muzammil Niazi with other employees of PACO in which the applicant Muzammil Niazi had major shares and he was its Managing Director which ultimately caused loss to Public Exchequer.

INJECTION AND MISUTILIZATION OF RS.450 MILLION IN TML The prosecution have collected oral and documentary evidence on this allegation. The oral evidence is based upon the evidence of Abdul Bari Khan, Ex-M.D. PMC who was also Secretary, PACO and attended the meetings in the said capacity. From his evidence and documents produced in this case it appears that the applicant Javed Burki invited the then Governor of Sindh who visited TML where a presentation was given to him and thereafter the factory was got visited.

The then Governor after the said presentation given by the applicant Javed Burki wrote a letter to the then President, the then Prime Minister, Minister for Defence, Minister for Industries and Production, Government of Pakistan in which certain actions were suggested to be taken for the take off of the project. Besides, others he recommended for injection of Rs,450 million into TML through a combination of (1) shareholders equity, (2) a long term loan from PACO from funds generated through the disinvestment of some of its minority holdings, (3) grants from Government.

He made certain recommendations to the Ministry of Defence in respect of contract and supply orders for the trucks. On the said letter a meeting was held under the Chairmanship of Secretary, Industries and Production on 29-5-1996. The minutes of the meeting reveals that both the applicants attended the meeting where the applicant Javed Burki informed the participants that TML had a negative equity of over Rs,200 million and also exceeded their Bank borrowing ceiling by Rs,167 million, therefore, the Government support was required for an amount of Rs,450 million. The Secretary Finance did not agree with the said proposal because of financial constraints of Government. Alternatively, the applicant Javed Burki suggested and proposed de-investments of PACO's minority shareholders in Suzuki Motor Company Rs,122.70 million, Hino Pak Motors Ltd.

Rs,190.14 million and Indus Motors Rs,17.70 million. The said proposal to some extent was accepted in the meeting and it was finally decided that the Chairman, PACO should exercise option of selling of minority shares to the extent of Rs,330.54 million required to sustain the programme.

From the above position it appears that it was the applicant Javed Burki who initiated proposal of injection of 450 million in TML and with that object he invited the then Governor of Sindh to whom presentation was given and obviously all the difficulties faced by TML were brought to the notice of the Governor as such the then Governor in the light of said presentation wrote the above mentioned letter. It is pertinent to point out that in the meeting the proposal of applicant Javed Burki was for injecting Rs,450 million but it was decided that Chairman, PACO should exercise the option for selling minority shares to the extent of 330.54 million. Thereafter the matter was placed before the Board of Directors of PACO which was discussed in the 51st meeting dated 26-5-1996 where again applicant Javed Burki informed the Board about the entire subject from the stage of visit of the then Governor to TML up to the decision of the above mentioned meeting and requested for injection of Rs,450 million in TML. Based upon the said representation, the Board allowed Rs,450 million to be injected in TML and thereafter the said amount was released to TML but the applicant Muzammil Niazi who was the Managing Director, TML did not utilize the amount in the manner for which it was given to TML. According to report of commercial audit which was conducted by Auditor-General of Pakistan the amount of Rs,450 million was utilized mostly in repayment of liabilities to Bank and financial institutions. In the Board's meeting a grant of rupees One lac fifty million was given to TML specially for development on technology exploring export avenues but no such thing was done by TML instead this portion of financial assistance was also utilized for the purpose other than that for which it was granted. The case of the applicants is that it was the Government's decision to inject the amount in TML but the, evidence collected by the prosecution reveals that it was the applicant Javed Burki who initiated this proposal by giving presentation to the then Governor of Sindh and then the process started and ultimately the applicant Javed Burki was successful in achieving the object by making presentation before the above mentioned meetings. Finally the amount reached in the hands of TML whose Managing Director was the applicant Muzammil Niazi and then it was misutilized. It is also pointed out that P.W. Abdul Karim made a report in writing to the applicant Javed Burki that TML would not be able to meet its commitment and had given such reasons for forming such opinion which was submitted to the applicant Javed Burki but in spite of that the applicant insisted upon continuing the process through TML. The record further reveals that the financial assistance was linked to confirm orders and its implementation by the DGMP as well as the resolution of various contractual issues. At the relevant time it shows that the DGMP was reluctant to place further order due to inability of TML to fulfil its previous orders because of non-delivery of vehicles by TML against the advances already received by them, as is clear, from correspondence between DGMP and PACO vide letters dated 4-9-1993 and 6-1-1994. There were also allegations of violation of contractual obligations from both the sides. In order to resolve those issues several meetings were held between the representatives of TML and Ministry of Industries and Production but the matter could not be resolved. Under these circumstances the applicant Javed Barki without ensuring about the future orders got injected the funds and got approved the amount from the Board of Directors of PACO which subsequently resulted in the wastage of funds of Rs,450 million of PACO and loss to Public Exchequer. The record further shows that Rs,180,00.00 was paid by PACO towards viability for TML though it should have been paid by TML being beneficiary from the said report. It is also clear that the consultant Shahab Azfar was being guided by the applicant Javed Burki for preparation of viability report to which the P.W. Abdul Bari had expressed serious objections and further added that company was basically non-viable commercial concern but the applicant Javed Burki did not take any action. It is further pointed out that in a meeting held on 11-6-1996, in Prime Minister's Secretariat under the Chairmanship of Special Assistant to the PM (Economic Sector) it was decided that the shares of PACO in Pak Suzuki, Hino Pak Motors and Indus Motors may be expedited and Rs,450 million recommended by the Sindh Governor be injected into TML. The applicant Javed Burki was present in the meeting but he did not inform the participants that the Board of PACO had already approved the financial assistance. As such the approval from PM's Secretariat was obtained when every thing was already over. From the above facts it appears that both the applicants had joined hands together in injecting and misutilizing the funds of Rs,450 million in TML which caused loss to Public Exchequer.

CLOSURE OF TDC In order to prove this allegation, the prosecution have relied upon the oral evidence of Ghulam Sarwar Baloch, the present Managing Director of TDC, and various documents. The oral evidence has been given with regard to performance of TDC, renting out facilities of TDC to TML and transfer of pending orders of TDC to TML up to the period when TDC went into liquidation. From the documentary evidence pertaining to the year 1987 to 1989 during the period of the Chairmanship of PACO by Kunwar Idris, it reveals that in the year 1985 TDC was to be privatized but the bid was very low, therefore, for revitalization of TDC several steps were taken including the appointment of applicant Muzammil Niazi as its Managing Director. The result was that the TDC was re-vitalised and received several orders. As such up to year 1989 TDC acquired business of 45 millions from Pak Army alone and was making profits. In the year 1990 when the applicant Javed Burki became the Chairman of the PACO, he wrote a letter dated 31-1-1991 to Lt.-General Hamid Niazi informing him about various steps taken by him to complete the programme of development. In that letter he also suggested funding to TDC for providing superstructure so that Yasoob Trucks can be tested.

This shows' that TDC had potential to complete the task of Yasoob Trucks but after formation of TML the situation changed. It further transpires that on 15-6-1992 applicant Javed Burki wrote a letter to applicant Muzammil Niazi informing him about the supply of Yasoob Military trucks. To Pak Army, but the TML was not having any building, therefore, in order to fulfil contractual obligations he informed him that TDC's facilities should be rented out to TML for an initial period of 12 months to enable TML to discharge its obligations under the contract but this should be done as earlier as possible, but not later than 31st July, 1992 i,e, within one and half months. From this letter, it appears that TDC was having capability to supply trucks but it further appears that in order to give benefit to TML the premises were rented out to TML so that the TML may fulfil their contractual obligation at the cost of TDC. It is further clear from the minutes of meeting of PACO held on 13-9-1992 that the applicant Javed Burki showed concern that. TDC was still having fresh orders from its customers including NLC, therefore, he directed that TDC should not procure any further orders even from NLC and all orders for which vouchers had been received and bulk, inventories have been paid by TDC would be completed by the TDC and all those orders for which bulk inventories had not been paid or arrived at TDC would be transferred to TML for completion of orders. It is further pointed out that an agreement between TDC and TMC for renting out of premises was executed on 15-10-1992 but in spite of that a draft of lease agreement was put up before the Board of Directors of TDC in the meeting held on 31-12-1992. The Board of Directors directed that the agreement be re-drafted with observation that rent may be renegotiated with TML in the light of the value of the land and building. As the rent deed was already executed on 15-10-1992, even before this Board of Directors' meeting, therefore, the said proposal of Board of Directors was not complied with. This clearly shows that agreement was executed without the concurrence of the Board of Directors. From the above resume of oral and documentary evidence it appears that the applicants are involved in closing of TDC which went in liquidation and caused loss to Public Exchequer.

BENEFITS GRANTED TO APPLICANT MUZAMMIL NIAZI THROUGH VOLUNTARILY RETIREMENT SCHEME In order to substantiate this allegation the prosecution have relied upon the oral evidence of P.W.

Amjad Pervez, General Manager of A&P Sindh Engineering Private Ltd. P.W. Ghulam Sarwar Baloch, Managing Director, TDC, Kalmar Idris, Ex-Chairman, PACO and the documents produced by the witnesses. From the perusal of record it appears that the applicant Muzammil Niazi was Managing Director of TDC and TML. The Voluntarily Retirement Scheme was not available to TDC and it appears that the applicant Javed Burki transferred him to PACO and within 4 days of joining PACO the applicant Muzammil Niazi applied for retirement under Voluntarily Retirement Scheme and the applicant Javed Burki granted/allowed him to retire and benefits were given to him. The allegation can be properly examined at the time of trial as it requires deeper appreciation of evidence but presently the prosecution appears to have sufficient evidence in support of the said allegation.

ACCOMMODATION TO APPLICANT JAVED BURKI In order to prove this point, the prosecution have relied upon the oral and documentary evidence.

Oral evidence is in the shape of P.W. Abdul Rauf Hafiz, General Manager, Finance PACO, Abdul Bari Khan, Managing director, PMC, and documents viz. Bank pay vouchers and letter dated 12-4-2002 from TML. The evidence is that a bungalow was obtained on rent at the rate of Rs,63,000 (Rupees Sixty-Three Thousand) per month which was provided to the applicant Javed Burki. The applicant was entitled to house rent at the rate of Rs,13,500 per month from PACO. The house rent allowance was sent to TML and the remaining amount was paid by TML towards the rent. This allegation can be properly thrashed out at the time of trial as it requires deeper appreciation of evidence, which at this stage cannot be undertaken. If any decision is given then it might prejudice the case of the parties.

UNAUTHORISED PAYMENTS On this allegation.The prosecution have relied upon the oral evidence of P.M. Jaseemuddin Khan, Secretary to applicant Muzammil Niazi, MD, TML and various documents. The documents reveal that huge expenses in the shape of excessive salary packages for TML Executives, donations to Golf and Polo Clubs and other organizations, personal expenses, which were charged to the Company, hiring Executive from U.S.A. And paying for their relocation to Pakistan alongwith their families etc. Were made. On this allegation no definite finding can be given at this stage, as it requires deeper appreciation of evidence and might prejudice the case of the parties. This point also can be properly thrashed out at the time of trial. But the fact remains that these expenses were made which are supported from the evidence collected by the prosecution and the same have not been denied.

In order to attract the provisions of section 9(a)(iii)(iv) and (vi) of the NAB Ordinance, intention of the accused plays a major and deciding role. As such for commission of such offence mens rea is an essential ingredient. The words 'dishonestly' and 'fraudulently' used in the above provisions have not been defined in the NAB Ordinance but have been defined in P.P.C. The definitions are as under:-- Section 24, P.P.C.

"Dishonestly.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly." The words section 23 of P.P.C. 'wrongful gain and wrongful loss' have been defined in as under:-- "Wrongful gain.--Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled."

"Wrongful loss.--Wrongful loss is the loss by unlawful means of property to which the person having it is legally entitled."

The word "fraudulently" has been defined in section 25, P.P.C. As under:-- "Fraudulently.--A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."

The evidence collected by the prosecution, if applied in the light of legal position then tentatively it can be gathered that the required mens rea of the applicants is available in the case. After considering the material available on the record, I am of the considered view that there are reasonable grounds for believing that the applicants are involved in this case, therefore, they are not entitled for the concession of bail. However, the trial Court is directed to dispose of this case within a period of three months. The observations made in this order are tentative in nature, which shall not come in the way of trial Court while deciding the case finally. The bail applications are dismissed.

(Sd.) REHMAT HUSSAIN JAFFERI, J.

SHABBIR AHMED, J.---The above bail applications were heard by a Division Bench of this Court composed of my learned brothers Sarmad Jalal osmany, J. And Rehmat Hussain Jafferi, J. Who vide their judgments being divided in opinion as to the decision of the applications. The case was placed before the Chief Justice, who ordered that the matter may be heard by me as a referee Judge. At the very outset, Mr.Abdul Hafeez Lakho, learned counsel for the applicant contended that he could not lay his hand on any case-law wherein on account of difference of opinion in bail matter, the procedure for reference or the mode to be adopted by the referee Judge and the scope and jurisdiction of the referee Judge have been dilated or discussed. He further maintained that there are numerous provisions on Statute Book covering the subject. In Code of Civil Procedure, section 98, whereas, in Code of Criminal Procedure, sections 378 and 429, pertain to the Appeal/Reference and Revision. He pointed out that in case of Jamini Mullick v. Emperor (ILR 36 Calcutta 174), on account of difference of opinion in bail matter between MITRA and COXE, JJ of Calcutta High Court, the matter was resolved under clause 36 of Letters Patent, 1865. According to the said provision, the opinion of Senior Judge was to prevail and on account of difference of opinion, the opinion of MITRA, J. Being Senior prevailed and bail was granted. He also pointed out that in Shakeel v. The State (PLD 1997 Karachi 172) on account of difference of opinion between the learned members of the Division Bench composed of Amanullah Abbasi, J. And Dr. Ghous Muhammad, J.,, in matter of bail, the matter was placed before Nazim Hussain Siddiqui, J. He as referee Judge, agreed with Dr.Ghous Muhammad, J. And by majority the bail was granted to the applicant therein but this judgment also sheds no light on the above points.

The provision for reference on account of difference of opinion in civil appeal, criminal reference and appeal are contained in section 98 of C.P.C. Read with clause 26 of Letters Patent, Lahore and sections 378 and 429 of Cr.P.C. Respectively, when the same are put in juxtaposition, the scope of reference in criminal matters and power/jurisdiction of the referee Judge is wider than scope of reference and jurisdiction of referee Judge in civil appeals. On perusal of section 98 of C.P.C., it appears that the power of making a reference to a third Judge is derivable only from the proviso to subsection (2) and since this only deals with a difference of opinion on a law point but subsection (3) extends the scope of reference on the point of fact as well and such question was addressed by apex Court in M/s. Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684) as follows:-- 'The first question urged by the learned counsel appearing in support of this appeal is that the reference to the third learned Judge was incompetent and, therefore, upon there being a difference of opinion between the two learned Judges who originally heard the appeal the decree of the trial Court should have been confirmed under subsection (2) of section 98 of the Code of Civil Procedure. Section 98 of the Code of Civil Procedure provides as follows:-- 98, (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges, or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from such decree shall be confirmed: Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any provision,. Of the Letters Patent of any High Court.' Learned counsel has urged that the power of making a reference to a third Judge is derivable only from the proviso to subsection (2) and since this only deals with a difference of opinion on a point of law, the reference in the present case of the questions formulated by the learned Judges could not have been made. The first question, it is said, is a mixed question of law and fact and the second question only raises a question of fact. It is true that under the proviso to section 98 of the Code of Civil Procedure a reference to a third Judge can only be made in the case of a difference on a question of law, but this is not the only provision of law under which a reference can be made to a third Judge in a High Court. Such a power is also contained is clause 26 of the Letters Patent of the Lahore High Court, which, prescribes:-- 26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section 108' of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it: It will be observed that in this clause there is nothing to indicate that the reference can only be of a point of law. This clause deals with all kinds of differences of opinion and all that is required under this clause is that the points of difference should be formulated by the Bench making the reference.

The reference under the Letters Patent may be on a point of fact as well as of law. There can also be no manner of doubt that section 98 of the Code of Civil Procedure does not abrogate the Letters Patent, for subsection (3) thereof expressly provides that nothing in section 98 shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court. Section 4 of the C.P.C., also makes the provisions of the Code applicable where no specific provision to the contrary is contained in any special or local law in force or where there is no special jurisdiction or power which may have been conferred by or under any other law for the time being in force. It is thus clear that there is no substance in this objection and the reference made in the present case was fully competent. If authority is needed for the proposition that section 98 does not affect the jurisdiction of the High Courts under the Letters Patent, reference may be made to the opinion of the Judicial Committee in the case of Bhaidas Shivdas v. Bhai Ghulab and others (48 I A 181) and to a Full Bench decision of the Lahore High Court itself in the case of Mst.Sardar Bibi v. Haq Nawaz Khan and another (AIR 1934 Lah. 371).' In Ahmed Sher and others v. Emperor (AIR 1931 Lahore 513) on account of difference of opinion between the Harrison and Dalip Singh, JJ, learned members of the Bench hearing the appeal. The matter was referred to Addison, J. In terms of section 429, Cr.P.C., who recorded his opinion that the case laid before a third Judge is the complete case insofar as the two Judges who first heard the appeal have differed as regards particular appellants but not the case of the other appellants as to whom they did not differ and the above view was based on remarks of Mookerji, J. In Sarat Chandra Mitra v. Emperor (11 Cr.LJ 515):-- "It is quite reasonable to maintain the view that upon reasonable interpretation of the term 'case' what has to be laid before the third Judge is the case of the prisoner as to whom the Judge were divided in opinion. This obviously means that so far as that particular accused is concerned the whole case is laid before the third Judge and it is his duty to consider all the points involved before he delivers his opinion upon the case." In Subedar and others v. The State (1956 Allahabad 529), the scope and jurisdiction of the referee Judge was dilated. The reference emanated in the following circumstances: Criminal appeal came up for hearing before the Division Bench consisting of Desai and V.D.

Bhargava, JJ. In view of difference of opinion between the learned Judges, the case was referred to a third Judge, (V Bhargave, J.) for opinion. On the return of the opinion of the third Judge to the Division Bench, the learned Judges of the Division Bench (Desai and V.D. Bhargava, JJ.) again disagreed as to the manner in which the appeal should be finally disposed of. In view of, that difference of opinion between the Judges of the Division Bench, the case was again referred to a third Judge (Oak, J.) for opinion. The facts were that the appellants were convicted by the Additional Sessions Judge under section 304, I.P.C. For causing the death of Bhajan Lal and under section 323 for causing simply hurt to Mitthu. During the appeal, the learned members of the ,Bench disagreed on the question whether appellants are guilty under section 304, I.P.C. And expressly recorded finding that their convictions and sentences under section 323 read with section 34, I.P.C. Were to be maintained and referred the case to the third Judge for his opinion. The Referee Judge v. Bhargava expressed his opinion with regard to the acquittal of the appellants on both counts under sections 304, I.P.C. And 323, read with section 34, I.P.C. Desai, J. Was of the opinion that the conviction of the appellants under section 323 must be maintained and they should he acquitted only of the offence of section 304, I.P.C. Whereas second member V.D. Bhargava, J. Was of the opinion that the whole case of the appellants was before the third Judge and he was not bound to agree with either of the Judges and his opinion is binding upon the Bench and held that the appellants cannot be convicted either under section 325 or 323, I.P.C. And they must be acquitted. Since the members were equally divided in opinion on the question whether the appellants' conviction and sentence under section 323, I.P.C. Should be maintained or quashed. The case was laid before the Chief Justice for obtaining another Judge's opinion on the matter. Oak, J. As a referee judge after the review of case-law with reference to the term ' the case' used in section 429, Cr.P.0 held that ' it is open to that Judge to take a view different from that taken by the referring 'Judges so far as that appellant is concerned. Upon this interpretation of section 429, Cr.P.C. Mr. Justice v. Bharagava (referee Judge) had jurisdiction to express the opinion implying that the appellants should be acquitted of all the charges although the referring Judges had expressly mentioned that convictions under section 323/34, I.P.C. Are to be maintained. The opinion of the third Judge is binding on the Division Bench. So the Division Bench had to acquit the appellants under section 323, I.P.C. Also. After the opinion of Oak, J., the case was laid before the Bench consisting of Desai and Bharagava, JJ. And the appeal was allowed with following notes:- "in view of the opinion of the third Judge, we allow the appeal of the appellants and acquit them of all the charges of which they have been convicted. Their sentences are set aside and their bail bonds are discharged." In Mohim Mondal v. The State (PLD 1964 Dacca 480) on account of difference of opinion between Asir and Salahuddin Ahmed, JJ. On the point whether the accused could have been convicted of rioting. Though both concurred in affirming the appellant under section 304, P.P.0 as well as the sentence pronounced upon him thereunder. Murshed, J. As referee Judge held that 'upon the difference of opinion between the learned Judges the case had to be laid before a third Judge, and this necessarily means that the whole case has to be referred to the third Judge and not merely the point or points on which the Judges differ. It then becomes the duty of third Judge, to whom the case is referred, to consider all the points involved in the case before he delivers his opinion.

Furthermore, it appears that the judgment order shall follow the opinion given by the third Judge. In Muhammad Sharif v. The State (PLD 1971 Lahore 708) on account of difference of opinion between Shamim Hussain Kadri and Muhammad Afzal Zullah, JJ. Learned members of Division Bench hearing the appeal and murder reference connected therewith. The matter was referred under section 429, Cr.P.C. To referee Judge (Ataullah Sajjad, J), one member found that "the offence had not been brought home to the appellant and ordered his acquittal, the second found him guilty and confirmed the death sentence imposed on him. The referee Judge maintained that 'under section 429, Cr.P.C. The reference to the third Judge is with regard to whole case the judgment or order is to follow his opinion. This opinion need not be in agreement or at variance with one of the Judges on account of whose difference of opinion a reference has been made. It has to be an independent assessm ent of the case including the question of sentence".

In reference on account of difference of opinion in Constitution petitions, the procedure to be followed with reference to clause 26 of Letters Patent of Lahore High Court and Rule 5, Chapter IV-N, Volume V of High Court Rules (applicable to the proceedings of this Court), was elucidated after extensive review of case-law in Muhammad Sayyar v. Vice-Chancellor, University of Peshawar (PLD 1974 SC 257) by the Supreme Court. The observations made by Hamoodur Rahman, C.J. Are as follows:- "In a case in which the members of a Division Bench are equally divided they must either deliver descending judgments bringing out the points of difference or formulate the points of difference for reference to third Judge and the third learned Judge must then decide the point or points of difference and return his opinion to the Division Bench to enable it to announce its judgments as held in the Full Bench case of the Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda (AIR 1943 Lahore 84). This is also the procedure prescribed by Lahore High Court Rules vide rule 5, Chapter IV-N, Volume V." It was further observed that:-- "the High Court in this sub-continent have predominantly held that only the point of difference is to be referred and not the whole case, and that in such a difference the referee Judge should return the case to be disposed of to the Division Bench with his opinion on the point of difference." The final conclusion was stated as follows:-- "From the above review of the decision, it would appear that there is a consensus of opinion in all the High Courts. In a case of this nature, it is the only of difference that is referred to the third Judge,. And the third Judge merely resolves the difference between the Judges of the Division Bench, who continue to retain jurisdiction over the matter. The final decision in the case was to be on the basis of the majority opinion including the Judges, who constituted the Division Bench.

Therefore, it is manifest that a referee Judge has no jurisdiction to decide anything else besides the points on which there is a difference of opinion, as the whole case or appeal is not before him." The Supreme Court found similarity and equivalency in language of clauses 26, Letters Patent of Lahore High Court, clause 27 of Allahabad High Court, clause 28, Letters Patent of Patna High Court and clause 36 of Letters Patent of the Calcutta, Mardas and Bombay High Courts after amendments in 1928. (Muhammad Sayyar v. Vice-Chancellor Peshawar University (supra)). In the State of Bihar v. Ram Ballabh Das Jalan and another (AIR 1960 Patna 400) on account of difference of opinion between Ahmed and U.N. Sinha, JJ., the matter was referred to R.K. Choudhary, J. And the latter after quoting the term of clause 28 of Letters Patent observed as follows:-- "The above provision makes it perfectly clear that, if the Judges of the Division Bench are divided in their opinion as to the decision to be given on any point, they shall state that point and the case shall then be heard upon that point by one or more of the other Judges. Therefore, it is only that point on which there has been the difference of opinion between the two learned Judges of the Division Bench which can be heard by me under clause 28 of the Letters Patent. The latter part of the clause, that the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it, also makes it perfectly clear that a point which has not been urged before the Division Bench and on which there has been no difference of opinion between them cannot be heard under the above clause of the Letters Patent by a third Judge inasmuch as in that case the decision cannot be according to the opinion of the majority of the Judges including those who first heard it." In A.K. Gopalan v. The District Magistrate, Malabar (AIR 1949 Madras 596) on account of difference of opinion between Subba Rao and Mack, JJ. In a proceeding under section 491 of Code of Criminal Procedure (Heabeas Corpus Petition), the matter was referred to Satyanarayana Rao, J., who at the very outset observed that 'the learned Judges who differed in their opinion should have stated the point upon which they differed as the proceedings under section 491, Criminal P.C. Are governed when there is a difference of opinion by clause 36 of the Letters Patent and not by section 429, Cr.P.C. The jurisdiction exercised by the High Court under section 491, Cr.P.C. Is not an appellate jurisdiction and therefore section 429 of the Code does not apply.' The proceeding under section 491 was found analogous to the proceedings under section 195 of the Code before it was amended in 1923, which was not found part of the appellate or revisional jurisdiction of this Court conferred by Chapters XXXI and XXXII of the Cr.P.C. It is further observed that the learned Judges therefore, ought to have formulated the point on which they differed'. A somewhat similar situation had arisen for decision on account of disagreement between the two learned Judges of the Division Bench of this Court in Mir Muhammad v. D.M., Nawabshah (PLD 1965 Karachi 494), Inamullah, J. (as he then was) to whom the case was referred as referee Judge observed that:- "the learned Judges have not acted strictly in compliance with the provisions of clause 26 of the Letters Patent inasmuch as they have not stated expressly the point or points on which the difference of opinion arose between them. It is, however, unnecessary to remit the case back to the Division Bench for the formal formulation of the points in difference. The two judgments clearly indicate the points of difference." The procedure and practice adopted by the referee Judge in Mir Muhammad (supra) was approved by Supreme Court in Muhammad Sayyar (supra) and has been followed in subsequent cases by learned Judges of this Court. In Zaibtan Textile Mills Ltd. v. Central Board of Revenue (PLD 1971 Karachi 333) also similarly the questions on which the learned Judges of the Division Bench had disagreed were not framed, but the third learned Judge before whom the case was placed proceeded to decide the points of difference on reading the judgments of the two learned Judges of the Division Bench and by himself framing the questions on which there appeared to be difference of opinion between the first two Judges.

' The same procedure was adopted by Zaffar Hussain Mirza, J. As referee Judge (as he then was) in Maher Alavi v. Pakistan and 5 others (PLD 1980 Karachi 609) in that case too, the questions on which the learned Judges of the Division Bench had disagreed were not framed, he proceeded to decide the points of difference on reading the judgments of the two learned Judges of the Bench on which there appeared to be the difference of opinion between the Judges.

The following points are deducible from above-referred case-law:--

1. In civil appeal on account of difference of opinion,--

(a) the referring Judges are required to formulate the point of difference;

(b) the reference may be on the points of law and or of facts;

(c) the Division Bench continue to retain jurisdiction over the matter;

(d) where the referring Judges referred the matter for opinion without formulating the point of difference, the referee Judge can formulate such points;

(e) the referee Judge to decide the points of difference only. The whole case is not before him:

(1) the referee Judge after his opinion to refer back his opinion to the Division Bench seized of the matter;

(g) the final decision in the case is to be on the basis of majority opinion including the Judges who constituted the Division Bench;

2. Whereas in criminal appeal, on account of difference of opinion:

(a) The whole case goes to the referee Judge with reference to the particular appellant.

(b) The opinion of the referee Judge is binding on the Division Bench.

(c) His opinion need not be in agreement or at variance with one of the Judges.

(d) The opinion of the referee Judge should be based on independent assessment of the case including the question of sentence.

(e) The referee Judge has to send his opinion to the Bench and the judgment would be based on such opinion.

' I am of the view that the matter of bail is interlocutory matter. The invocation of the provision of section 429 on account of difference of opinion between the learned Judges, would be misplaced as the provision of section 429, Cr.P.C., pertains to the appeals contained in Chapter XXXI. I am of the view that the procedure formulated by Supreme Court in Muhammad Sayyar v. Vice- Chancellor, University of Peshawar (supra) and A.K. Gopalan v. District Magistrate, Malabar (supra) is to be followed.

' Following the above authoritative pronouncement, I am clearly of the opinion that as a referee Judge my jurisdiction is limited to resolve the difference between the Judges of the Division Bench who continue to retain M the jurisdiction over the matter. Myself as referee Judge have no jurisdiction to decide anything else beside the point on which there is difference of opinion as the whole case is not before me. It may also be noted that the power of third Judge is very limited, he cannot make further reference to the Full Bench [Ishan Chandra Samanta v. Hridoy Krishan Bose (AIR 1925 Calcutta 1040)] and bound to follow a previous Division Bench decision even if he disagrees with it. It is not open to him to refer the matter to the Division Bench [Yusuf Sk. And others v. The State (AIR 1954 Calcutta 258)]. It may be pointed out that the learned members of the Division Bench have recorded separate orders, but they have not stated expressly the point or points on which the difference of opinion arose between them. In case where the members of Division Bench are equally divided, they must either deliver descending opinions bringing out the points of difference for reference to the third Judge. Since, however, the learned Judges of the Division Bench have not expressly formulated the points of difference between them, it becomes necessary to determine them before proceeding further by adopting the line for formulation of point of difference, as adopted by referee Judges of this Court in Mir Muhammad, Zaibtan Taxtile Ltd. And Mahar Alavi's cases. I have the benefit and have had the pleasure of perusing the orders for formulation of point of difference between the learned members of the Bench, and as a result thereof the following question is formulated:-- "Whether there are reasonable grounds for believing that the applicants are guilty of the offences charged"? Beside the advantages of two orders of my learned brothers I have also had the benefit of very fully arguments advanced by Mr.Abdul Hafeez Lakho and Mrs. Ismat Mehdi, learned counsel for the applicants and Mr.Muhammad Anwar Tariq, learned Deputy Prosecutor-General, NAB and Mr.Khalid Mehmood, Special Public Prosecutor on behalf of the State. During the course of argument, Mr. Muhammad Anwar Tariq, learned Deputy Prosecutor-General, NAB brought to my notice the dictum recorded by apex Court in Haji Ghulam Ali v. The State (2003 SCMR 597) that the Courts have no jurisdiction in cases emanating from the provision of Ordinance, 1999 to grant bail to an accused under section 497, Cr.P.C. He also pointed out that same view was taken by a Division Bench of this Court consisting of myself and Azizullah M. Memon, J. In Criminal Bail Application No,1069 of 2002 (Mst. Fatima Ismail v. The State), the bail application was dismissed by order dated 4-10-2002. The apex Court dismissed the petition for leave to appeal against the said order in Petition No,922-K of 2002, Mst. Fatima v. The State by order dated 28-11- 2002. The objection on the ground of maintainability of the applications need not detain me long because the whole case is not before me still the case is before the Division Bench. My jurisdiction as referee Judge is to extent of opinion on the point of difference only. Secondly, there is no difference of opinion on the point of maintainability of the application. Lastly such plea was raised before the Division Bench and was addressed in paras. 23 and 31 of the order written by Senior Member of the Bench, Sarmad Jalal Osmany, J. With following observations:-

23. As far as the maintainability of the bail applications are concerned learned counsel has submitted that as per section 9(b) of the Ordinance the High Court has power under section 497.

Cr.P.C. To consider bail. Per learned counsel section 9(b) was amended after the decision in Khan Asfand Yar Wali v. The State (supra). Even otherwise learned counsel has submitted that the matter becomes of academic interest only since this Court has all the powers to treat the bail applications as petitions under Article 199 of the Constitution per Khan Asfand Yar Wali v. The State (supra). In this regard he has also referred to the case of Zulfiqar Ali v. The State (PLD 2002 SC 546).

37. Finally, as regards the controversy whether this Court could entertain a bail application in NAB cases, in my view this is now an academic question after the decision of the Hon'ble Supreme Court in Khan Asfand Yar Wali's case (supra) whereby it has been held that bail could always be granted under the Constitution jurisdiction of this Court."

Here I may quote the view expressed by Sale, J. In Royal Calcutta Turf Club's case (supra) that the referee Judge did not even have the jurisdiction to decide the point of difference, the jurisdiction for deciding the points remained with Division Bench seized of the matter. The facts of the case have been narrated in great detail in the order of my learned brother Sarmad Jalal Osmany, J. And need not therefore be stated. However, the broad outline of the case is that in pursuance of the representation by the then Chairman, Pakistan Automobile Corporation Limited (in short PACO) on 1-12-1997 addressed to General Aslam Baig, the then Chief of Army Staff, appraising him of the facilities and capabilities for assembling and body fabrication of Military Trucks developed by PACO Companies with the technical assistance of the principal of re- fabrication of Old M34 Trucks through local industry to save foreign exchange. The capabilities and facilities available with Bela Engineering, National Motors, Trailer Development Corporation Ltd. In manufacturing of trailers, trucks and bus bodies and specialized vehicle like aircraft and fire tender were also highlighted. As consequence thereof, meetings for presentation to the COAS were held in presence of representative of Ministries of Defence, Production etc., the following decisions were taken:--

(a) Army would wholeheartedly support the project of production of Military Vehicles in Pakistan under PACO/Ministry of Production.

(b) Generally approved the time schedule and investment level of the project and the overall approach suggested by Muzammil Niazi.

(c) AWT would invest Rs,12.5 million as the development costs, modality of their shares and royalty be worked out by MD, AWT and Muzammil Niazi.

(d) 'Go ahead' to the project and for instruction to TDC/PACO to produce six prototypes in different configuration for trials by Army.

(e) Feasibility of development/manufacture of a family of 1/4 ton jeep and 1 ton fighting echelon truck having commonality of engine and other parts.

(f) A presentation to be arranged within two months on last items. The Trail Trucks produced (under IVP) were named by COAS as Yaqoob' after the name of the horse of the Holy Prophet (peace be upon him). Accountability Reference emanates from the aforesaid project with set of allegations against the applicants that they have committed the offence of Corruption and Corrupt Practices as defined under subsection (a), (iii) and (vi) of section 9 of the National Accountability Bureau Ordinance (in short the NAB Ordinance). Introductory facts are that PACO Corporation Ltd. (in short PACO) is a Public Sector Corporation, fully owned and controlled by the Government of Pakistan, formed to manage the Nationalized Industry of Automobiles Sector. The Trailer Development Corporation (in short TDC), Pakistan Motors, Company (in short PMC) are its unit. The TDC engaged in manufacturing of trailers and fabrication of various types of vehicles. Whereas, the PMC in research and development of technical knowhow. Applicant Javed Burki was appointed Chairman of the PACO and its different subsidiary companies, being the nominee of Ministry of Industries and Production, Government of Pakistan. Whereas applicant Muzammil Niazi was appointed Managing Director of the TDC in 1987. The main allegations are that the applicants in active connivance and abatement, inter se, have indulged in the abuse/misuse of authority and failed to exercise the authority to prevent the loss to the exchequer and extend undue benefit/favour to their favourites by (i) Assigning the project Yasoob to 'Trans Mobile Limited', a private sector Company (in short TML), formation thereof was in grave violation of the Prime Minister's directive; (ii) injection and misutilization of Rs,450 million in TML through sale of equity share owned by PACO; (iii) closure of TDC by leasing its facilities, (iv) grant of benefit to applicant Muzammil Niazi through Voluntarily Retirement Scheme (VRS) by applicant Javed Burki; (iv) the acquisition of bungalow at the rental of Rs,63,000 per month for applicant Javed Burki named 'Yasoob House' and (v) unauthorized payments, (vi) acquisition of equity share in Arabian Sea Country Club. The Offence of Corruption and Corrupt Practices has been defined in section 9 of National Accountability Bureau Ordinance, 1999 (in short NAB Ordinance). The relevant provision reads as follows:-- "9. Corruption and corrupt practices.--(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices--

(i) .

(ii) ..........

(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or (iv)

(v) ..

(vi) misuses his authority so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority." Before embarking on the respective contentions of the learned counsel for the applicants and State, it would be advantageous to recapitulate the parameters for the grant of bail as envisaged under section 497, Cr.P.C. Highlighted by apex Court in (1) Government of Sindh v. Raeesa Farooq 1994 SCMR 1283 and (2) Tariq Bashir v. State PLD 1995 SC 34. Former case emanating from the Writ Jurisdiction under Article 199 of the Constitution. Saleem Akhtar, J. Wrote the judgment observed that:- "a Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exits for believing that the accused has committed an non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see .Whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere acquisition of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. As observed in Ch. Abdul Malik v. The State PLD 1968 SC 349, however, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime.

If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail." In later case, Muhammad Munir Khan, J., who, wrote the judgment on behalf of the Bench concluded: "That the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfied the Court that there are not reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence..., the Court will not conduct a preliminary trial/inquiry but will only make tentative assessment, i,e, will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case of plea of defence at that stage." It was further observed that bail order must be carefully balanced and weighed in scale of justice and requirement of law. Reasonable grounds means grounds which appeal to a reasonable and prudent man. The general rule of law is that no crime can be committed unless there is mens rea. On the same principle an act done under an honest and reasonable belief in the existence of a state of things would not, in general, fall within a statute which prohibited it under a penalty. Halsbury's Laws of England, under Article 508, Volume 10, 3rd Edition, it is stated that:- "A statutory crime may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute. In some cases, the Courts have concluded that despite the absence of express language the intention of the Legislature was that mens rea was a necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irrespective of mens rea. Instances of this strict liability have arisen on legislation concerning food and drugs, liquor-licensing, and many other matters." The basic rule of interpretation of statutes is that unless a statute clearly or by necessary implication rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law 'unless he, has a guilty mind'. Hamoodur Rahman, J. Dilated on mens rea, an essential element in action/omission constituting the offence, in Pakistan through the Secretary of Finance v. Hardcastle Waud (Pakistan) Ltd., PLD 1967 SC 1, by stating that:-- "In case of statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms or by necessary implication rules it out. The mere omission of the word 'knowingly' or 'intentionally' is not sufficient to rebut this presumption for all that such words do is to say expressly what is normally implied. Thus where the words used in the statute are not clear or unambiguous an examination of the general scheme and object of the statute becomes necessary to determine whether the general rule of liability has been departed from. In some cases even the quantum of the punishment has been taken into account for determining this question, though this by itself cannot, in my view, be conclusive." After recapitulating the parameters for the grant of bail and mens rea, an essential element in an act and omission constituting offence, I now proceed to discuss the respective contentions. Mr. Abdul Hafeez Lakho, learned counsei for the applicants argued a legal point that where there is a difference of opinion between the two Judges in bail matter, a doubt has been created, benefit of which is to be extended to the applicant by granting the bail to him. His contention was that benefit of doubt has been extended at the bail stage by superior Courts and to support his contention, he referred the view taken in cases (i) Manzoor v. The State PLD 1975 SC 81, (ii) Tariq Bashir v. The State PLD 1995 SC 34.

Mr. Abdul Hafeez Lakho, learned counsel for the applicants has addressed on the allegations inter alia, as follows:--

(i) Assigning of the project Yasoob through formation of TML. Mr. Abdul Hafeez Lakho vehemently urged that on this allegation, Mr. Justice Sarmad Jalal Osmany has expressed his opinion in favour of the applicants, whereas Mr. Justice Rehmat Hussain Jafferi expressed his opinion in favour of the prosecution about the prima facie existence of material against the appellants. He maintained that oral evidence furnished by witnesses Abdur Rauf Hafeez, G.M. Finance, Abdul Bari Khan, Amjad Parvez Saeed, Kanwar Idrees. Former Chairman, PACO, Tasneemul Haq and Zubair Qudvai do not involve the applicants from their personal knowledge. He pointed out that witnesses Abdul Rauf Hafiz and Amjad Parvez have produced the documents and their oral evidence is nothing but the interpretation of the documents produced by them which is not the function of a witness. He maintained that this is the function of the Court. He pointed out that Abdul Bari Khan was Secretary of PACO and participated in the meetings of the Board of Directors and has not implicated the applicants at any stage, that he was coerced or influenced in adopting the resolutions in Board meetings. He also pointed out that the statement of Zubair Qudvai is also not incriminating in nature, so far as this allegation is concerned. Lastly, he pointed out that the statement of Kanwar Idrees, former Chairman, PACO is not incriminating at all and after referring his statement, he maintained that his evidence is to the extent of appointment of applicant Muzammil Niazi on his desire to join PACO formally. At that time PACO had a unit i,e, TDC, the same was not going well and he thought that Muzammil Niazi would be a person to accept the challenge and revitalize the said unit. He also pointed out that the statement of Tasneemul Haq is also not incriminating on this allegation. The learned counsel further contention was that the nature of other material is documentary evidence viz. Letter dated 12-8-1987, whereby the then Chairman namely. Kanwar Idrees highlighted the capability and technical resources of the units of PACO and asked for the support from the Army for the supply of vehicle to Army. In pursuance of thereof presentations were given to the then COAS wherein the decision and modality for participation of AWT and release of initial amount of Rs,12.5 million was to be worked out by Secretary, DP Div, MD, AWT and Chairman, PACO, besides development of prototypes cost analysis of series production of Military/Civil Trucks was also to be estimated. He pointed out that Minister of State for Defence and Secretary DP in the said meeting were present and gave an assurance that they would stand guarantee to recoup any losses that may be suffered by AWT.

Based on this assurance COAS asked MD, AWT to release funds to PACO. He also pointed out that second meeting was held on 28-7-1991 on Yasoob Project' under the chairmanship of COAS, wherein detailed presentation on the project as desired by COAS in the last meeting was given. He pointed out that, inter alia, it was proposed to convert the project into a joint venture between the PACO (51%) and DGMP & AWT (49%) and AWT was given option for royalty on vehicle sold or withdraw its current investment and COAS, remarks that, he agreed with the Chairman, PACO that the project should be a joint venture having private and professional management. And in the said presentation, the capability to develop different types of prototypes of light vehicles in different tonnage class and other vehicles were highlighted. The COAS approved for a commitment for 3000 vehicles and a contract for 400 vehicles in a financial year. Mr. Abdul Hafeez Lakho pointed out that Abdul Bari Khan is a signatory to the Joint Venture Agreement. He also pointed out that the JVA was placed for approval in 10th meeting of Board of Directors of PACO held on 12-2-1992 in presence of applicant Javed Burki, Farhat Mirza, Major-Gen. Ahmad Ali, Ejaz Ahmed and Abdul Bari and certain deficiencies were pointed out and in 11th meeting of Board of Directors held on 26-2-1992. Revised JVA was tabled after circulation the said meeting and was approved under Resolution No,III and the assignment of supply contract of Yasoob was rectified by the Board in its 12th meeting.

On these premises, Mr.Abdul Hafeez Lakho maintained that in the reference, in principle, these are the allegations directed against the individual, whereas, admittedly all the decisions were taken by the Board of Directors of PACO and with regard to the formation of TML through a Joint Venture Agreement. He submitted that it was approved by the Board of PACO and was in line with the decision taken by the COAS's meeting held on 28-7-1991, whereby the project was envisaged in the private sector and professional may and so as to ensure maximum efficiency. It was also pointed out that TDC did not have either the capability or the expertise for the project requiring massive infrastructure plus precise engineering skills etc. And he pointed out that such background of the formation has been given by witness Abdur Rauf. Therefore, the material collected do not incriminate the individuals in any manner but through corporate action and with backing and blessings of Special Customer i,e, Army. With regard to the allegation of injection of Rs,450 million in TML, he maintained that TML's need of fund was accepted by the Board of Directors and he pointed out that injection of the fund was not a personal decision but not only by the Board of Directors but on recommendations of High Power Committees of Ministry of Industries and Production as well as of Prime Minister's House on the Suggestion of the then Governor and pointed out the minutes of meetings held on 22-5-1996 and 11-6-1996. The financial problem was as a result and or arising from delay in finalizing of the price of three ton trucks and non-adherence of the contractual obligation by not placing a- minimum order of 400 trucks per annum and other related matters. He pointed out that final decision was taken to generate the funds by the de-investment of PACO's shares in Pak Suzuki, Hinopak Motors and Indus Motors, value of Rs,450 million for injection into TML to meet Prudential Regulations and to accelerate the deliveries to the Army as the Ministry of Industries and Production had shown their inability to provide fund. He pointed out that participants who attended meeting, were Mr.Shahid Hasan Khan, SAPM (ES), Mr.Aftab Ahmad Khan. Secretary, Ministry of Industries and Production, Mr. Mazhar Rafi, Secretary, Defence Production Division, Mr. Alvi Abdul Rahim, Chairman, CBR, Mr.Waqar Masood Khan, Additional Secretary (E&F), Mr.Javed Burki, Chairman, Pak Automobile Corporation, Mr.Riazul Haq, Deputy Secretary, PM's Secretariat. He pointed out that the investment was approved by the Board in its 51st meeting held on 26-5-1996. Therefore, he contended that the injection was not an individual act but through a corporate decision. He also pointed out that this allegation is 'detailed in the para. 16 of the reference, with facts that the accused No,1 (applicant Javed Burki) conspired and arranged a visit by Mr.Kamal Azfar, the then Governor Sindh, to TML, in order to manoeuvre a financial package of Rs,450 million from public funds and maintained that the conspiracy cannot be by one person and none has been associated in such conspiracy even Mr.Kamal Azfar is not a witness of prosecution. This reflects mala fide on the part of the prosecution. Next allegation is regarding closure of TDC, Mr.Abdul Hafeez Lakho maintained that the allegation is based on oral evidence of Ghulam Sarwar Baloch. He referred the statement of Ghulam Sarwar Baloch, MD TDC and pointed out that this witness has produced the documents. Whereafter he has interpreted the documents. His oral evidence suffers from the same infirmity as that of Abdur Rauf Hafiz and Amjad Parvez. The learned counsel contended, as such, no incriminating evidence except the leasing of facility/premises to TML as the TDC was non- profitable and burdensome concern. The allegation of the leasing by the applicant in his personal capacity and detrimental to the interest of TDC, is contrary to the record and he pointed out the minutes of the meeting held on 24-11-1994 of Board of Directors of TDC under Agenda Item No,2 under impact of profit and loss account leasing of a TDC facilities. He pointed the decision in the following terms:-- As directed by the Board recollected impact of leasing out the TDL facilities to TML was placed before the Board. The collection shows that the saving was Rs,1.5 million and the due benefit was of 6.5 per annum. The Board expressed the satisfaction on saving made through leasing arrangement.' Mr. Abdul Hafeez Lakho also pointed out that meeting was presided by Javed Burki, and amongst the participants were witnessed by Abdul Bari Khan, Syed Khalil Ahmed Boneri, Lt.-Col (R) K.H.

Sehgal and Abdur Rauf Hafiz (prosecution witness). He maintained that the leasing facility was beneficial rather than detrimental as alleged. He pointed out that the matter of the non-recovery of rental is sub judice with counterclaim through suits in this Court. The next allegation is with regard to the Voluntarily Retirement Scheme extended to applicant Muzammil Niazi by applicant Javed Burki, Mr. Abdul Hafeez Lakho maintained that there is no finding by Mr. Justice Rehmat Hussain Jafferi on this allegation and opined that the allegation can be properly examined at the time of trial as it requires deeper appreciation of evidence but presently the prosecution appears to have sufficient evidence in support of the said allegation. He maintained that the opinion of Justice Sarmad Jalal Osmany in this respect is that it cannot be said at this stage that availing of the same by Muzammil Niazi amounted to an abuse of authority by Javed Burki, particularly when Muzammil Niazi was appointed M.D., TML in PACO's management Grade-I and he was also assigned the charge of MD, National Motors and referred the letter dated 29-6-1984. On the basis of these letters, he maintained that the PACO is the main body, whereas TDC, NMC are its units. The posting/transfer to and from main unit is not against the rules.

Therefore, such action cannot have the attributes of dishonest or fraudulent. Regarding the acquisition of equity share and donations to various clubs and institutions by applicant Javed Burki, Mr.Abdul Hafeez Lakho submitted that most companies including State- owned companies like PIA and PSO do give donations to support various sports like Hockey, Cricket and Squash and there was nothing unusual in PACO sponsoring some Golf Tournaments etc. And contended that there was no mens rea at all involved in giving such donations as neither were these for the benefit of applicant nor were these given for any ulterior purpose or motive but purely to support the game of Golf and Polo. Mrs. Ismat Mehdi, learned counsel for the applicant while adopting the arguments advanced by Mr.Abdul Hafeez Lakho, she further pointed out that the concept of a Public and Private Sector Joint Venture for developing the series of military vehicles was envisaged right from the inception of the project which is evident by the participation of Army Welfare Trust, a private concern as one of the stakeholder reflected from the CAOS's decision and referred the minutes of the presentation to the CAOS' held on 9-9-1989 and referred the PACO letter dated 28-5-1991 with a privatized management and franchise to ensure with Government Privatization/Denationalization and Regulatory Policy, ensure commercial viability of the Company to provide 'Yasoob Project' with a strong civil facade. She refuted that the Private Company was formed only to misappropriate and usurp the assets of PMC as well as PACO is belied by the project report submitted by the Chairman PACO to Secretary, Defence Production which-makes specific mention of the corporate structure and management envisaged on the pattern of their other PACO JVs for Hinopak Motors Domestic Appliances, Suzuki Motors and was proposed management by professional management Group Policy controlled PACO/major customer and supplier. She further contended that on 8-6-1991 a conference was held under the chairmanship of COAS, wherein it was acknowledged that the facility available at TDC was insufficient to meet the demands of a project of this magnitude and because of the privatization of NMC it became imperative to establish a new facility as a long term measure to ensure viability of a project. She further maintained that on 28-7-1991 in the conference chaired by the COAS, it was reiterated by him that the project should be a JV having Private and Professional Management and approved the commitment for 3000 vehicles and a contract for 400 vehicles in the said fiscal years, she referred the minutes of the Conference on 'Yasoob Project' of even date. She maintained that on 10-3-1992 a JVA was entered into between Pakistan Motorcar Company (PMC) a totally owned unit of PACO and Management Partners Limited (MPL), the agreement was approved by the Board of Directors of PACO on 26-2-1992 in its 11th Board meeting which stipulates the establishment of a Company namely Trans Mobile Limited and it was incorporated on 26-3-1992. On 19-5-1992 a roll on contract for 3000 Yasoob Trucks over a period of 7 years was signed between PACO (the supplier) and ADGMP Ministry of Defence (the purchaser) and to implement the contract the facilities of TDC were rented out to TML on '15-10-1992 under the memorandum of understanding and the lease agreement. The contract of all the contract employees at TDC was terminated. Most of the employees laid-off proceeded to join TML since the applicant Muzammil Niazi was a PACO employee he was duly posted hack to PACO where he resigned and availed the benefit of the Voluntary Retirement Scheme. She also pointed out that the applicant is not the only person who availed the facility by pointing out the list of employees who availed the benefit of VRS. She also pointed out that the TML had acquired services of qualified Engineers, Quality Assayer and Finance Manager and Material Experts to whom substantial training was imparted for production of specialized vehicles of Yasoob. However, due to low scale of salary about 68 experts resigned from the Company for better prospects and joined the multi-national Companies, whereby the idea of raising the salaries at lehst to some extent befitting the qualification and the market trend was given. All the compensation packages and remuneration of employees was duly approved by the Board of Directors in 12th meeting of TML held on 24-3-1996.

She also pointed out that the TML was asked to be a sharer of Country Club being promoted by PACO and initial investment of Rs,2 million as equity in the proposed Arabian Sea Country Club was approved by Board meeting of 6-3-1994. The Board desired to dis-investment the equity its Board of Directors meeting held on 1-3-1997 and the equity was refunded to the TML in 1997. She pointed out the 15th meeting of Board of Directors of TML, for approval of disinvestment in Arabian Sea Country Club. With regard to the allegation of providing bungalow for applicant Javed Burki, by applicant Muzammil Niazi at the monthly rental of Rs,53,000 at the costs of TML as against formal entitlement of Rs,13,500 as House Rent. The amount of entitlement was sent to TML and balance was paid by the TML. Justice Rehmat Hussain Jafferi has not recorded any finding, whereas, Justice Sarmad Jalal Osmany has taken it as irregularity, at most a case of disciplinary proceeding but no criminal proceeding. It was contended that only one facility has been availed. The applicant was Chairman of TML, neither illegal nor in violation of law. Had it been a case of availing of the facility from both concerned then in that case, there would have been violation of rules with regard to accommodation. Mr.Khalid Mahmood, Special Public Prosecutor after a resume of the background of the ' Yasoob Project' with PACO and its units/subsidiary, he maintained that the Army was a simple customer at the counter and any indulgence of Army in any form i.e through representation or presentations was only to convince a customer to purchase the goods from the seller, therefore, the Army role in formation of TML or the contract through JVA to TML, between PMC and Management Partners, a Private Ltd. Company, is misplaced. The applicant Muzammil Niazi had a majority shareholding in spite of a public servant and formation of TML, an associated company, were the acts on the part of the applicant nothing but with criminal intention to hijack the contract through JVA between the PMC and PML. The applicant Javed Burki was Chairman of PMC whereas applicant Muzammil Niazi was Chairman of TDC, their action in formation and hijacking is nothing but criminal act which is also against the Civil Servant Conduct Rules and after formation applicant Javed Burki became Chairman, whereas, applicant Muzammil Niazi became the Managing Director of TML and he referred the First Board Meeting held on 2-4-1992. He also urged that the assignment of contract between the PACO and DGMP to TML through assignment agreement dated 15-6-1992 was in violation of the directive of the Prime Minister. The renting out of the premises/facilities of TDC to TML was without approval of the competent authority, in this regard he referred Board meeting held on 31-12-1992. He further contended that when the matter was p:esented in the Board meeting, the Board did not approve it. It was also contended by him that it caused the closure of TDC, a State-owned company firstly by renting out its entire premises in an illegal manner and secondly by transfer of contract work to TML. He also maintained that applicant Javed Burki in order to grant undue favour to applicant Muzammil Niazi, he posted him in PACO to enable him to avail the facility of Voluntary Retirement Scheme (VRS) which were not available to him not being an employee of PACO and he referred the letters dated 25-5-1987, 31-5-1987, GOP letter dated 18-8-1987.

Registration dated 19-12-1992 and statement of Kanwar Idrees. It was also contended by him that through gross misuse of his authority, the applicant No,2 gained benefit and extended favour to applicant No,2, by permitting him to continue as MD, TDC (a public servant) and MD, TML (a Private Sector). Simultaneously for about six months and referred the joining report dated 15-10-1992 and First Board of Directors meeting of TML dated 2-4-1992. It was also pointed out by him that both applicants manoeuvred and fixed exorbitant salaries of applicant Muzammil Niazi and his associates which were far in excess of the standard salaries in the all PACO companies. He further contended that the applicants as Chairman and MD respectively carried out illegal and unauthorized expenses which had no connection with the business of the Company and failed to implement the decisions of 16th Board meeting of PMC to terminate the JVA and also to confiscate the causes of costs overrun of this project and referred the statement of P.W. Abdul Bari Khan. He argued that a palatial house (I have my reservations on such statement that a palatial house could be hired at the rent of Rs,63,000 in Defence Housing Authority, Karachi or in Islamabad) for the residence of applicant No,1 which was far in excess of his entitlement as a Public Servant and paid by TML running mainly on public funds. He referred the statement of Abdur Rauf Hafiz payment vouchers. He further maintained that as Chairman and MD made an investment of Rs,2,000,000 in Arabian Sea Country Club from TML despite the fact TML was also running in losses.

He maintained that through manoeuvring, misrepresenting, misuse of authority and exercising authority, they sold the profitable investment of PACO and transferred the heavy public funds amounting to Rs,450 million to TML and thus caused loss of corresponding amount to the exchequer by selling the shares. On the above facts, it was maintained by him that the applicants dishonestly and fraudulently misappropriated and otherwise converted for their own use and for the use of each other, the property entrusted to them under their control and also wilfully allowed each other to do so, thus their actions/omissions/deeds falls under the mischief of section 9(a)(iii)(vi) of the NAB Ordinance.

Thus he maintained that there are reasonable grounds to believe that the applicants have committed the offences. While concluding his arguments, Special Prosecutor reiterated with vehemence that a vital point for decision by the referee Judge is very maintainability of the bail applications and urged that question of maintainability of applications may be decided in the light of decisions of the apex Court in Haji Ghulam Ali v. The State (2003 SCMR 597) and Mst. Fatima Ismail v. The State 2003 SCMR 733). He also maintained that formulation of points by referee Judge on his own is an exception and the normal course of action is to refer the case back for formulation of point or points and to support his contentions, he referred the cases of (1) A.K. Gopalan v. District Magistrate Gopalan (AIR 1949 Madras 596) and (2) Muhammad Sayyar v. Vice-Chancellor, Peshawar University (PLD 1974 SC 257).

' I would like to address the above legal points raised by him first, which are reproduced as follows:- - ' (a) That a vital point for decision by the referee Judge is the very maintainability of the subject bail applications. It is, therefore, stated with respect that this Hon'ble Court may first decide the question of maintainability of the said bail applications in the light of the stated below decisions of Hon'ble Supreme Court reported in 2003 SCMR 597 and 2003 SCMR 733. This prayer is being made since it is well settled that a proceeding which is not maintainable, should be buried at its inception in order to save the valuable time of the Court as well as of the parties enabling them to seek remedy at the appropriate forum expeditiously.

(b) That in cases reported as AIR 1949 (36) Madras 596 and .PLD 1974 SC 257, when a reference was made to a referee Judge without formulation of points of difference, the points were formulated by the referee Judge. However, it was clarified that this was being done as an exception, with the consent of the parties, and because the issue involved was a simple one. It is therefore evident that the formulation of points by referee Judge on his own is an exception and normal course of action is to refer the case back for formulation of point or points as provided in the law and elaborated in the judgments supra.'

The formation of legal points reproduced above is a sharp reflection .Of ignorance of law on the part of Public Prosecutor, with regard to reference and the scope, jurisdiction and power of the referee Judge. The referee Judge is not seized of the whole matter which is still seized by the referring Judges and the jurisdiction of the referee judge is confined to the extent of points of difference. There is no difference of opinion on maintainability of the bail applications between the referring Judges. Therefore, such plea cannot be raised before referee Judge. While acknowledging the repetition, on the plea, I may again refer the case of Muhammad Sayyar v. Vice-Chancellor Peshawar University (supra).

Attending to the second plea, I may state that the referee Judge has the jurisdiction to formulate the point and or points of difference where the learned referring Judges have not formulated the point and or points of difference, by appraising the two judgments. If any reference is required the Full Bench judgments in (1) Muhammad Akram v. Choudhary Saleem (PLD 1964 Lahore 490), (2) Mir Muhammad v. District Magistrate, Nawabshah (PLD 1965 Karachi 494), (3) Zaibtan Textile Mills v.

Central Board of Revenue (PLD 1971 Karachi 333), (4) Mahar Alvi v. Pakistan and 5 others (PLD 1980 Karachi 609) can be referred. The view expressed in above cases was approved by apex Court in Muhammad Sayyar (supra) and I may quote the observations of Muhammad Yaqoob Ali, J. In Muhammad Akram (supra): "4. Mst.Sardar Bibi v. Haq Nawaz Khan (1), Ch. Muhammad Tufail v. Mst.Bakhat Bibi and another (2) and Civil and Military Gazette v. Ghulam Rasul (3) bear observations to the effect that the point or points of fact or law on which the members of a Division Bench have come to disagree must be expressed separately otherwise the reference to the third Judge will be defective; but it was held that if reasons could be ascertained from the dissenting judgments, it was unnecessary to remit the case to the members of the Division Bench for indicating the points of difference. In my humble opinion, it is not the requirement of law that apart from writing dissenting judgments the members of a Division Bench should expressly record the point or points on which they have come to differ, but it is unnecessary to analyse this aspect of the case any further because in each case the point or points on which the members of a Division Bench have differed can invariably be ascertained by the perusal of the dissenting judgment. The matter is, thus, of an academic interest only." I may also refer in this regard the dictum of the apex Court, while addressing such point in Mubarak Ali Khan v. Anjum Islamia, Punjab, Lahore (PLD 1982 SC 315), Zafar Hussain Mirza, J., observed in the following terms:- "It will be seen, as observed by their Lordships, in the case of Muhammad Sayyar, that Clause 26 of Letters Patent, in terms does not prescribe for any form for stating the point of difference or for making the reference to one or more Judges for the resolution of the difference between the Judges originally hearing the case Such point of difference can very well be found out by the reference I adge or Judges upon perusing the judgment of the dissenting Judges, in order to hear and formulate opinion on the point of difference, so that finally the point may be decided ' according to the opinion of the majority of the Judges who have heard the case including those who first heard it." Therefore, the contention, that the formulation of points by the referee Judge in exceptional cases otherwise normal course of action to refer the case back to the referring Judge for formulation of point(s) of difference, is fallacious. Mr. Muhammad Anwar Tariq learned Deputy Prosecutor General, N.A.B has argued the legal aspect and submitted the case-law_ on which the prosecution relies, he referred cases of (1) Abdul Ghafti Sharif v. State (PLD 1961 Dacca 21) and (2) Pakistan Through The Secretary, Ministry of Finance v.

Hardcastle (WAUD) (Pakistan) Ltd, (PLD '1967 SC 1) to contend that mens rea is not an essential element in constituting an offence under special law and maintained that where object and terms of a statute is speedy disposal, the element of mens rea an essential element to constitute the offence is not necessary and he maintained that the NAB Ordinance is a special enactment enacted with specific purpose to eradicate corruption and-corrupt practices and hold accountable all those persons accused of such practices and matter ancillary thereto with expeditious not only trial but investigation as well by hearing the case day to day arid as disposal within 30 days. The first case enianates from the prov isions of Industrial Dispute' Ordinance enacted with specific purpose to maintain the smooth functioning Of industries, harmonious relation between the employee and employer and resolution of.The disputes arising therefrom. In case of Pakistan through the Secretary, Ministry of Finance v. Hardcastle (Wand) (Pakistan) Ltd., emanated from the provisions of Sea Customs Act (repealed), involving a case of misdeclaration.

The mens rea with reference to the statutory offence was dilated by Hamoodur Rehman, J., that 'even in the case of statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms x or by necessary implication rules it out.

The mere omission of the word x ' knowingly' or ' intentionally' is not sufficient to rebut this presumption for all that such words do is to say expressly what is normally implied. Thus where the words used in the statute are not clear or unambiguous an examination of the general scheme and object of the statute becomes necessary to determine whether general rule of liability has been departed from.' It was further contended by him that, no doubt, the High Court has jurisdiction to grant the bail under its Constitutional jurisdiction but such exercise is permissible provided the action is coupled with mala fide and the applicants seeking the concession of bail has shown that there is no reasonable ground to believe that he has committed the offence. In other words, his contention was that apart from the condition for the exercise of jurisdiction as contemplated under section 497, Cr.P.C, the exercise of such power under Article 199 of the Constitution is sine qua non to mala fide actions and to support his contention, he referred the cases (1) Choudhary Gahoorul Haq v.

The State (PLD 1977 SC 273), (2) Government of Sindh v. v. Raeesa Farooq (1994 SCMR 1283), (3)

Shahida Faisal v. Federation of Pakistan (PLD 2000 Lahore 508), (4) Muhammad Saeed Mehdi v.

State (2002 SCMR 284), (5) Khalid Hameed v. Chairman, NAB (PLD 2003 Lah. 94) and lastly (6) Haji Ghulam Ali v. The State (2003 SCMR 597). He also referred the cases of (1) Choudhary Abdul Malik v. State (PLD 1968 SC 349) and (2) Nisar Ahmed v. State (PLD 1971 SC 174). In the above cases, the term 'reasonable ground' with reference to the provisions of section 497, Cr.P.C., was explained.

Mr. Muhammad Anwar Tariq further contended though Samad Jalal Osmany, J. While expressing the opinion in favour of the applicants, though has not, in express term, used the terms ' further inquiry' in the order but maintained that from the tenure of the order, it appears that bail has been granted on the ground of further inquiry and he cited the following case on 'further inquiry' (1)

Arbab Ali v. Khamiso and others (1985 SCMR 195), (2) Ibrahim v. Hayat Gul and others (1985 SCMR 382), (3) Shah Zaman v. State (PLD 1994 SC 65), (4) Mst. Bashiran Bibi v. Nisar Ahmed (PLD 1990 SC 83), (5) Mst. Resham Jan v. Abdul Rehman (1991 SCMR 1849) and lastly he maintained that the applicant has given donations to the different Clubs which has no nexus with the business of the PACO and on such facts, the conviction was maintained by this Court and referred the case of Siddiqeul-Farooq v. The State (PLD 2002 Karachi 24), wherein gifts of mango crates sent by the applicant therein to those who were in power was held to be not for the purpose of the Company.

Lastly, he maintained that a distinction has to be drawn between the offences committed by individual in his private capacity and one committed in his official capacity, more particularly, with reference to the white-collar crimes and he has made reference to the case of Imtiaz Ahmed v.

State (PLD 1997 SC 545). In rebuttal, Mr.Abudl Hafeez Lakho has again reiterated that the material placed on record does not establish' the individual act of the applicant, everything done in the light of decisions of Board of Directors of PACO, PML, TML, TDC and none of the witnesses have stated that the decisions taken were obtained by influencing the other members of the Board or misuse of authority. He further contended that misuse of authority is not an offence of strict liability and mens rea is a sine qua non to make such acts an offence. He maintained that a person may, in exercise of his authority, go wrong due to some ordinary human failing or error but this, per se, will not be actionable under the law, when a public functionary deliberately uses or exercises his own authority or for that matter usurps the powers of another public functionary with the object of gaining any benefit or advantage for himself or for any other person then he would be guilty of an offence. He further maintained that the provisions of NAB Ordinance do not rule out mens rea and make the offence as one of strict liability. The very word (sic) 9(a)(vi) read with reference to the object of gaining any benefit or favour makes it abundantly clear that it means a deliberately wrong use of authority by a'person to gain any benefit or favour for himself or any other person. He also urged that the foundation of mens rea is based on two elements: firstly, conscious misuse of authority and secondly, gaining of any benefit or favour by the accused for himself or for any other person and to support this contention, learned counsel cited the observations made in Maj. (Retd.)

Tariq Javed Afridi.v. The State (PLD 2002 Lahore 233) that mens rea would have to be established insofar as the section 9(a)(vi) of the Ordinance is concerned which would be found in two elements: firstly, conscious misuse of authority and secondly gaining of any benefit or favour by the accused himself or any other person. He also urged that same view was expressed in M.Anwar Saifullah Khan v. The'State (PLD 2002 Lahore 458) that the offence of misuse of authority under section 9(a)(vi) was not of strict liability hence mens rea had to be established in order to prove the charge.

' Learned counsel further urged with vehemence that the case of Siddiq-ul-Farooq (supra) referred to by learned Deputy Prosecutor-General, NAB is distinguishable with present case as a positive finding was recorded by this Court that the gifts given by the appellant to various high Government officials were for the purpose to advance his personal interest which would be violative of section 9(a)(vi) and maintained that the National Institutions like, PIA.PSO, Customs, PAF, etc., are patronizing the sports such as, Hockey, Cricket, Squash and Golf, therefore, it was not unusual or extraordinary for the PACO/TML to have patronized the game of Polo and Golf which was not for the applicants own benefit. He maintained that the allegation against the applicants arises out of the acts and omissions which are of corporate nature and for which authorization are available through Board's Resolution of the Companies involved. Instead of entire Board only the individuals have been picked up though the decisions were of the Board thus no individual's liability and to support his contention, he referred the case of Abdul Qadir v. Federation of Pakistan (2002 SCMR 1478). The apex Court in the similar circumstances held that the entire Board of the Company is responsible for the acts of the Bank and not individuals, therefore, the applicants could not be held responsible for the acts of Board. He also maintained that the cases of Mansoorul Haq, v. The State and Sameer Rauf v. The State are distinguishable with the present facts and the dictum laid down are not applicable to the present case. In Sameer Rauf (supra), the apex Court came to the conclusion that evidently a huge amount had been misappropriated from the funds of EOBI which fact had been sufficiently established by the prosecution and amount had been siphoned into the account of Republic Securities Ltd., by the absconding accused and so also the appellant who was Chief Executive of the said Company. In Mansoorul Haq (surpa), a Division Bench refused. The bail to the applicant by observing that he could be connected to the crime in question viz. Over payment for the purchase of ships by PNSC of which he was the Chairman to the tune of Rs,1851,743,000 and the learned Bench concluded that a perusal of the documents placed on the record would prima facie show that the applicant with criminal intent and malafidly recommended the purchase of the ships in question at a much higher price than the prevailing market rate and thus abused his authority and/or wilfully failed to exercise the same for the purpose of making an unlawful gain which resulted in a corresponding loss to the Exchequer. This recommendation was made despite a positive finding by the officers of PNSC that at least one of the ships was not fit for purchase as it had engine problems. Lastly, Mr.Abdul Hafeez Lakho maintained that the parameters fixed for the grant of bail under Constitution jurisdiction in Ghulam Ali v. The State (supra) is not sine qua non, the mala fide in action and maintained that the opinion expressed in Muhammad Saeed Mehdi v. The State (PLD 2002 Lahore 124) and Ghulam Ali v. The State (2003 SCMR 597), authored by same Judge (Muhammad Nawaz Abbasi, J.) and the sums and substance of the dictum of above cases is in consonance of the view expressed in Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607) that power of High Court for grant of bail in writ jurisdiction would be available and accused of an offence under NAB Ordinance, 1999 is at liberty to take any ground for grant of bail on the basis of which bail can be granted under section 497 Cr.P.C. (Emphasis underlined).

In view of the discussions, referred hereinabove, I am of the view that the case of the prosecution is based upon alleged abuse of authority and wilful failure to exercise such authority by the applicants as public servant for the purpose of gaining of benefits/favours and advantages for themselves and their associates, such abuse of authority is related to Yasoob Project' conceived for manufacturing Trucks for Armed Forces in Public Sector through PACO and its associates. However, the applicants managed to form a company in Private Sector in trading style TML through Joint Venture Agreement between the PML and MPL and the main allegation is that the formation of MPL by applicant Muzammil Niazi being public servant was mala fide with criminal intent to hijack the project against the specific directive of the Prime Minister and secondly the floating/acquiring the share in the Company as Public servant, he was not supposed to acquire movable or immovable property exceeding 1,00,000 rupee in value. Any person if acquires property without permission in violation of Rule 11 would be guilty of misconduct under Government Servants (Efficiency and Discipline) Rules provided a Civil Servant is serving in civil capacity in connection with the affairs of the centre and to the members of all Pakistan serving during their employment under Provincial Government or on deputation with Government Agencies, Institutions or Authority but that would not be penal offence. Though acquisition of property beyond the known source is a scheduled offence but no such allegation is against the applicant Muzammil Niazi. The execution of contract emanating from Yasoob Project was Trailer made by Army as reflected from the presentation made to the COAS on 9-9-1989 and thereafter a directive dated 10-5-1991 was issued under the direction of Prime Minister of Pakistan endorsing the Project and much emphasis has been given on clause (a) that Series Production by using, manufacturing facilities of PACO and Pakistan Army and subsequent presentation/meetings, the Project was Joint Venture by participation of Army Welfare Trust, a private concern as reflected from COAS decision. Therefore, it is, prima facie, wrong to contend that it was purely Public Sector Project. Joint Venture Agreement, the Formation of TML and subsequent decisions were through Board of Directors and not an individual act. The view taken in Abdul Qadir v. Federation of Pakistan (supra) supports the plea raised on behalf of the applicants that the entire Board of the Company is responsible for said acts and not individuals.

Therefore, there appears reasonable ground for believing that the applicants are not guilty of the offence charged. As regards the allegation regarding injection of Rs,450 million in TML, the injection of Rs,450 million is not by an individual but not only by the decision of the Board of Directors of PACO in its meeting dated 26-5-1996 but also the High Power Committee of Ministry of Industries and Production, Government of Pakistan held on 22-5-1996 and backed by High Power Committee of Prime Minster House and an attempt was made to bring the case of the applicants at par with case of Mansoorul Haq who was refused bail by this Court by contending that applicant No,1 had obtained the comments of P.W. Abdul Bari Khan who had adversely commented on the viability of TML and in spite of such opinion, the amount was injected. Witness Abdul Bari Khan, attended the Board meeting but no adverse comment was made by him in the meeting. Had it been a case of individual the liability would have been on the applicants but it was approved by the PACO through its 51st meeting held on 26-5-1996, after approval of High Power Committee of Ministry of Industries and Production of 22-5-1996, participants thereof were Mr.Aftab Khan, Secretary, Ministry of Industries and Production, (2) Maj.-Gen. M.Saleed Arshad, D.G. (W&E), GHQ, (3) AVM Ikramullah, DG (P.M), (4) Mr.Muhammad Saud, Chief Customs, CBR, (5) Mr.Zaka Farooq DFA, Industries and Production, (6) Mr.Amjad Shaikh, Joint Secretary, (7) Mr. Inamullah, S.O., Ministry of Industries and Production and the applicants and backed by the decision of High Power Committee of Prime Minister held on 11-6-1996. The decision was that:- "7. Finally, it was decided that the disinvestment of PACO's shares in Pak Suzuki, Hinopak Motors and Indus Motors be expedited and the Rs,450 million recommended by the Governor, Sindh quickly injected into TML so that SBP's Prudential Regulations could be met and deliveries to the Army accelerated." Therefore, on the analogy of Abdul Qadir case, the applicants cannot be burdened. Much has been said about the closure of TDC, the unit was in financial crises as reflected from the letter dated 23-8-1987 by the former Chairman, PACO that Company borrowing was of Rs,44.4 million (Banks Rs,28.2 M and PACO Rs,16.2 M) and the accumulated loss was of Rs,43.3 million including an interest of Rs,22.6 million accrued on National Motors loan which has already been written off NML Books, the allegation is that the premises/facilities were transferred to TML detrimental to the TDC's interest and without the permission of the Board. The applicants have demonstrated that agreement was approved by the Board in its Board. Of Directors meeting on 24-11-1994. In the same manner, it is also alleged that the acquisition of equity share worth Rs,20 million was without the authority and sanction. It has been demonstrated by the applicants that the acquisition of equity share was the decision of the Board and subsequently de-investment of equity shares was also through Board decision through Board meeting dated 6-4-1994 and de-investment in its Board meeting held on 1-3-1997. The Board meetings with regard to the approval of the leasing and investment and de-investment were produced by the learned counsel for the applicants. The authenticity of these documents were not challenged. At this stage, it may be noted that the role of the Investigating Officer is to collect all he materials for and against the accused and it is unfair on his part to collect only those material, during investigation, which incriminates the accused and leave those which favours them. As regards the donations to the different Clubs and sponsoring the Golf Tournament, in my view these expenditures were in line with the donations of other National Institutions such as, PIA, PSO, PAF, Customs etc. For promotion of the sports and not in personal interest, at this stage, attributable to either of the applicants. So far as the benefits extended by applicant Muzammil Niaz viz. Accommodation to the applicant Javed Burki are concerned, my learned brother Rehmat Hussain Jafferi, J. Has not commented on it whereas, my learned brother Sarmad Jalal Osmany, J. Has commented in favour of the applicants.

I may state that as Chairman the applicant's availment of facility of accommodation is not against the Corporate Law, availment of such facility from both concerns could be of penal consequence which is not the case. With regard to the allegation that the applicants had the services of personnel by calling them from States with package of salary and other benefits not consonarate with the pay packages of PACO units thus caused the loss. This allegation was dealt by my learned brother Rehmat Hussain Jafferi, J. With other expenditure and he was of the view that it requires deeper appreciation and may prejudice the case of the either party which can be properly thrashed out at the time of trial but observed that the expenses incurred were not denied. The hiring of personnel with handsome perks and privilege is not a new concept. The National Bank of Pakistan, United Bank Limited and other Financial Institutions have hired the services after retrenchment of their employees. Central Board of Revenue has also hired the services of such personnel. The hiring or payment of salaries must be coupled with criminal intention. The prosecution could have collected the material that the personnel so hired were not of such skill in Automobile Sector which is a specialized field of Engineering and is at basic stage in Pakistan, stepping in manufacturing process. Therefore, merely on the accusation acquisition of hiring the personnel in absence of any material that the personnel who were hired were not of that caliber, no criminal intention is attributable at this stage. Last but not the least, the accusations against the applicants flow from massive documentary evidence. The applicants need opportunity to see these documents, prepare their defence and face their trial under the concept of 'fair trial'. I am of the view that the applicants are also entitled for the concession of bail on such ground. This view gets support from the Full Bench decision of Lahore High Court in Anwar Saifullah Khan v. The'State (PLD 2000 Lahore 564) wherein the similar allegations were alleged against the petitioner therein who was granted pre-arrest bail. The observations are as follows:-- "The accusations against him flow from massive documentary evidence. The petitioner naturally needs an occasion to see these documents, prepare his defence and face his trial. This entitles him prima facie, the concession of pre-arrest bail." From the above narration, I am of the view that there are sufficient material available on record for believing that the applicants are not guilty of the offences charged. Before concluding the opinion, it is necessary to refer to a legal argument which was addressed by Mr. Abdul Hafeez Lakho. Learned counsel argued that where there is a difference of opinion between two Judges particularly in bail matter, a doubt has been created benefit of which is to be extended to the applicant by granting the bail to the applicants. Mr. Lakho had built up his argument on the concept of Judicial Etiquette propounded by Mahmood, J. In Empress v. Debi Singh 1886 All. WN 275. Mahmood, J. In criminal appeal, as referee Judge pointed out that the deliberate opinion of one Judge in favour of acquittal upon a grave question of the weight of evidence in a case heard by a Bench consisting of only two Judges should, ipso facto, constitute in most cases a sufficient reason for creating such a serious doubt that the benefit of that doubt should be given to the prisoner. While fully alive that the law as enacted by the Legislature in sections 378 and 429 of the Code of Criminal Procedure should be given effect to, Mahmood, J. Observed that:-- "as a matter of judicial Etiquette, when one Judge differs from his brother Judge on a pure question of the weight of evidence as to the propriety of a conviction, the opinion of the Judge who is in favour of acquittal should prevail at least, as a general rule." When a similar point arose for decision before the Orissa High Court in Khetri Bewa v. State AIR 1952 Orissa 37, Ray, C.J. Expressed the same view and laid down the rule as follows: In my opinion what struck me at the beginning was correct, namely, that I could, unless on scrutinizing the materials on record the judgment of the judge pronouncing in favour of innocence of the accused was considered far from fairly reasonable, or, to be more accurate, not (sic) perverse, give the benefit, of reasonable doubt to the accused and acquit her." A similar view was taken by the Rajagopalan, J. Of the Madras High Court in an unreported case In re: Karuppa Thevan referred to in ReSitaramayya AIR 1953 Madras 61, the observations are as follows:-- "Where the main question at issue is identity of the assailants... ... ..The very fact, that one of the two learned Judges, who had to decide that question was of the view that the identity of the accused with those assailants had not been established beyond all reasonable doubt, should suffice to establish the basis for such a reasonable doubt, the benefit of which of course, the accused have to get. In my opinion, a third Judge, to whom the question is referred under section 378 of the Code of Criminal Procedure, should normally accept that finding unless the compelling necessity of conclusive evidence on record drives him to deny the existence of any basis for a reasonable doubt." In Rajabali and another v. The Crown PLD 1954 Sindh 49, Z.H. Uri, J. Adopted the same line by agreeing with the observation made by Ray, C.J., and on an unreported case of Allahabad High Court relating to the criminal appeal which came before the two eminent Judges of Allahabad High Court i,e, Sir Henry Richard, C.J., and Sir Promoda Charan Benerji, J. The learned Judges differed and took a contrary view. Sir Henry Richards dictated a judgement of acquittal. Sir Promoda Charan Benerji dictated a different judgment giving reasons why the appellant before him should be convicted, but towards the end he observed: "However, inasmuch as the Hon'ble Chief Justice has come to a different conclusion in favour of the accused, I am not prepared to dissent, I, therefore, agree that the appeal should be allowed." It may be pointed out that the provision of section 429, Cr.P.C., for reference on account of difference of opinion between the learned members of the Bench hearing the appeal, was incorporated for the first time in the Code of Criminal Procedure, 1898, before that practice was that the view of Senior Judge prevailed. Perhaps, on that anology Sir Promoda Charan Benerji, J. In spite of dictating a different judgment ultimately recorded that 'I an not prepared to dissent, I, therefore, agree that the appeal should be allowed'. Although contention of Mr. Abdul Hafeez Lakho derives support from the cases referred to above, yet it runs counter to the view taken in Empress v. Bundoo 1887 All. WN 125, wherein the view taken by Mahmood, J. Was strongly criticized by Edge, C.J., of the same High Court by pointing out that: " There was no rule of judicial etiquette' which prescribed that a Judge, in a capital or any other case, should subordinate his judgment to that of his brother Judge, and that each Judge should act upon the opinion which he has formed upon the case so far as the deciding of the case depended on questions of fact." In re: Ravipat Sitaramayya AIR 1953 Madras 61, Somasundaram, J. Expressed the same view in agreement with view expressed by Edge, C.J., in Empress v. Bundoo (supra) that: "It is the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him for his opinion. Neither section 378 nor section 429 contemplates the dice being loaded heavily in favour of either view. The opinion expressed by some Judges, namely, that the normal disposal by a third judge should be one of agreement with the opinion of acquittal, is not correct. It would be tantamount to a judgment of acquittal in practice prevailing over a judgment for conviction. " Similar plea was considered by A.S. Farooqui, J. In Khurdo and others v. The State PLD 1963 Karachi 92, and after the review of the case-law, reached to the conclusion:-- "I have not been able to persuade myself to hold that where one Judge has reached a conclusion in favour of acquittal upon the weight of evidence the third Judge must as a rule give the benefit of doubt to the accused unless he finds that the view taken is perverse. For one thing, the third Judge, however, mighty or learned he might be, would not, at least 'as a matter of judicial etiquette', be able to say that a view taken by a learned brother of the same Court was perverse. But the learned Judges to whose opinion I have referred have pointed out that unless it is so held the third Judge should agree with the Judge favouring acquittal. The acceptance of this view, in my opinion and I say so with great humility would make the provisions of sections 378 and 429 more or less redundant." In The State v. Salehoon PLD 1971 Lah. 292 the Bench faced with the similar situation on a plea raised on behalf of the respondent that in the event of the Judges of the Bench forming an opinion favouring to the accused as a matter of prudence especially when the difference of opinion has arisen in an appeal against acquittal. Anwarul Haq, C.J., after review of the case-law agreed with the view taken by A.S. Farooqui, J. In Khurdoo and others v. The State (supra) as follows:-- "I find myself in respectful agreement with the view taken by Faruqui, J. In the case just cited.

Speaking with great respect to the learned Judge who decided the case re: Narsiah and others in the Andhra Pradesh High Court, it seems to me that there is an inherent contradiction in saying, on the one hand, that the whole case is before the third Judge and he is at liberty to examine the whole evidence for himself and deliver his opinion; and, on the other hand, laying down the 'golden rule' that he should favour the opinion of acquittal recorded by one of the differing Judges before whom the case comes up in the first instance. It is clear that such a rule would have the necessary effect of circumscribing the powers and judgment of the third Judge in violation of the clear language of the statute. It is also further clear that such a rule would, in effect, amount to prescribing that in the event of a difference of opinion between the two Judges comprising the Court of Appeal the accused shall either be acquitted or that his acquittal shall not be interfered with in an appeal under section 417 of the Code. Such an interpretation is not warranted by the statute, and would in fact render nugatory the provisions contained in sections 378 and 429, Cr.P.C.

I consider, therefore, that in the present reference I have the power, and it is my duty, to examine the whole case afresh so as to form my own opinion with regard to the guilt or innocence of the respondent Salehoon. It goes without saying that due weight has to be attached to the reasons given by the two learned Judges of the Division Bench in support of their respective opinions."

With regard to bail which should not be withheld as punishable, the legal plea raised by Mr. Abdul Hafeez Lakho is weighty with substance; and gets tacit approval by the dictum in Tariq Bashir v.

State PLD 1995 SC 340 by apex Court that on account of difference of opinion between the Judges on bail matter, one learned Judge on examination of material collected during the investigation by the prosecution against the applicant was of the opinion that there were no reasonable grounds to believe that the applicant is guilty of the offences charged, and on the same material on record another learned Judge has come to totally different conclusion that there are reasonable grounds to believe that the applicant has committed the alleged offence. The contrary conclusion arrived at by the two learned Judges have made the existence of reasonable ground to connect the applicant with the crime doubtful, entitled him to the benefit of doubt at bail stage. Therefore, I am of the view that on the above analogy, the contrary conclusion arrived at by the learned Judges have made the existence of a reasonable ground to connect the applicants with crime doubtful entitled them to the benefit of doubt, by extending the concesstion of bail as contemplated under section 497, Cr.P.C. It may also be pointed out that in Muhammad Shakeel v. Sakhi Zaman 1999 SCMR 32 the leave to appeal has been granted to consider, inter alia, the question whether difference of opinion between the learned Judges of the Division Bench in High Court on the question as to whether there appears reasonable ground for believing that the accused/respondents have been guilty of an offence punishable with rigorous imprisonment for ten years or with life imprisonment is tantamount to 'further inquiry' within the contemplation of section 497)(2), Cr.P.C.

In the result, I agree with the view expressed by my learned brother Sarmad Jalal Osmany, J. That the applicants are entitled for the concession of bail, which should be extended to them. I am indebted to the learned counsel who appeared in this case for an able and exhaustive arguments and I appreciate the manner in which Mr. Abdul Hafeez Lakho and Mrs Ismat Mehdi, learned counsel for the applicants and Mr. Muhammad Anwar Tariq, learned Deputy Prosecutor- General, NAB in their usual lucid and most professional style have presented their pros and cons contentions. Simultaneously, I cannot restrain myself from expressing my dismay that the conduct of Mr. Khalid Mahmood, Special Prosecutor was not compatible of an Officer of the Court and he acted as a typical prosecutor, I will advise him on his hurried behaviour and antagonist attitude to read from 'Advocacy by Sonawala' on the subject and not to address the Bench by saying 'Page No, 138 of your file'. I will also advise Public functionaries that while engaging a counsel to represent the State instead of adopting obliging/patronizing attitude, the merits based on knowledge, and experience in the field should be the criteria of such selection and/or appointment. The case now be placed before Division Bench for further orders, if the same Bench is not available, the bail applications being urgent in nature involving the liberty of the citizen it require immediate attention. The office may obtain an order from Chief Justice for formation of Special Bench in line with the practice adopted in Mir Muhammad v. District Magistrate, Nawabshah PLD 1965 Karachi 494.

(Sd.)

SHABBIR AHMED, J