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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Criminal Miscellaneous No.233/B of 1987, decided on 18th May, 1987.
---Dictum laid down in a criminal case is not to be applied as a rule in other cases but is to be applied keeping in view the facts of each case.--[Precedent].
Khalid Rashid and another v. The State P L D 1972 Lah. 729 and Rana Muhammad Amin alias Muhammad v. The State P I; D 1978, Lah. 78 ref
--S.497--Bail--Court is not expected to make any observation with regard to merits of case at bail stage as that could result in prejudicing the case of either side.
Gulzar Hussain Shah v. Ghulam Murtaza and 4 others P L D 1970 S C 335 rel.
- --S.497--Bail, grant of--A matter of discretion with Court.
Ch. Abdul Malik v. The State P L D 1968 S C 349 rel.
--S.497--Bail--Word ' discretion'--Having vast connotation--Meaning of word 'discretion' and 'discretionary power of a judge' stated.- [Words and phrases].
---S.497--Bail, grant of--All relevant factors should necessarily be taken into consideration.
---S.497--Penal Code (XLV of 1860), S.409/420/406/218--Prevention of Corruption Act (II of 1947), S.5(2)--Bail, grant of Accused remaining in police custody; subjected to interrogation; investigation completed and challan submitted in Court; trial likely to commence in near future when prosecution likely to examine sixty-six witnesses; accounts also to be checked and accused as such would have to be by side of his counsel--Matter calling for further inquiry and there existed no justification to keep accused behind bars indefinitely--Bail granted in circumstances.
--S.497--Bail bond, amount of--In normal practice amount of bail bond, held, must not be excessive otherwise it would amount to taking away concession given to an accused which indirectly would mean refusal of bail--Prosecution alleging misappropriation running into crores--Normal practice not sufficient in such like cases.
H M . B . Zaman assisted by Asif Jan for Petitioner.
Khawaja Sultan Ahmad Special Public Prosecutor.
Farooq Bedar, A.A.-G. for the State.
On the written complaint, dated 18-1-1987, of the Secretary, Government of the Punjab, industries and Mineral Development Department, addressed to the Director, Anti-Corruption Establishment, a criminal case was registered at the Directorate of Anti-Corruption Establishment, Lahore under sections 409, 420, 406 and 218, PPC, read with section 5 of the Prevention of Corruption Act, 1947, against Naveed Asif, Managing Director, Punjab Small Industries Corporation (hereinafter to be referred as the PSIC), Lahore, and others.
The contents of the F.I.R. are as under:-
"Subject:-Registration of a case in respect of fraudulent purchase of land by Punjab Small Industries Corporation for Faisalabad Estate-II.
The Punjab Small Industries Corporation (PSIC) has purchased ioi acres, 1 kanal and 7 marlas of land in Chak No.165/R. B. Tehsil and District Faisalabad vide sale-deeds Nos.4899, 5090 and . 5907, dated 26-7-1986, 2-8-1986 and 18-9-1986, respectively, for a total consideration of Rs.5,34,04,218.75 at an average price of Rs.2,95,000/- per acre. The average sale price of the agricultural land in this village, according to Deputy Commissioner/ Collector, Faisalabad, is Rs.8,153.60 per acre. The average sale price of residential land is, however, Rs.80,060/- per acre. The classification of the land purchased by PSIC in the revenue record is agricultural which is confirmed by spot inspection.
(2) The subject land could have been easily acquired at the price intimated by the Deputy Commissioner/ Collector, Faisalabad, i.e. Rs.8,153.60 per acre whereas PSIC has actually paid at the average of Rs.2.95 lacs per acre, thus ,causing a loss of approximately Rs.5.20 crores to the Corporation. Approval of the Government for purchase of land nor for the Scheme itself was obtained at any stage. Similarly approval of the PSIC Board had also not been obtained.
(3) The following officers in collaboration with the two General Attorneys of the vendors namely (1) Mr. Iftikhar Ahmad s/o Haji Karim Bakhsh and (2) Mr. Jamal Din s/o Muhammad Abdullah, r/o 3-C, Gulberg, Faisalabad and Mr. Ehsan Sabri, Legal Advisor of the PSIC have been guilty of fraudulent transaction of land causing huge financial loss to the Government:-
(1) Mr. Navid Asif, former Managing Director, Small Industries Corporation, (2) Ch. Muhammad Ikram, former Project Direcotr, (TKP), PSIC (3) Mr. A.M. Akhtar, former Director, F&A, PSIC, (4) Mr. Amin Ullah Khan Niazi, former Director, P&C, PSIC, (5) Mr. Naseer Ahmad Qureshi, former Joint Director, Sargodha Zone, PSIC, (6) Mr. Rashid Tanwir, former Deputy Director, Small Industries Estate, Faisalabad, PSIC, (7) Malik Sher Ahmad, former Tehsildar PSIC.
(4) The matter is accordingly referred for immediate registration of a case under the Anti-Corruption Act and the other relevant penal sections.
Sd/- Ali Kazim." Naveed Asif was taken into custody on the night of 18th of January, 1987.
He applied for bail to the Senior Special'Judge, Anti-Corruption, Punjab, Lahore. His application was dismissed on 20-1-1987.
Thereafter, he moved this Court.
On 7-3-1987, the then Special Public Prosecutor submitted that there were number of documents which would prima facie show the implication of the petitioner in the alleged fraud. Learned counsel for the petitioner was taken aback because he did not know of all these documents. 1, therefore, directed the Special Public Prosecutor to give copies of those documents to the counsel for the petitioner and also to place them on the record. Learned counsel for the petitioner sought adjournment to have further instructions from the petitioner. The case was accordingly adjounred. The documents relied upon by the prosecution were given to the counsel for ,the petitioner and also placed on the record.
The first contention raised by the learned counsel for the petitioner was that the arrest of the petitioner was mala fide. In this connection, the counsel submitted that the petitioner was dining with his family and a few friends in a restaurant when an Officer of Anti-Corruption Establishment came, took the petitioner out and told him that he was under arrest.
Learned counsel submitted that if at all the petitioner was to be taken into custody, that could have been done in a proper manner, rather than to humiliate him before his family, friend, and public. The manner in which the petitioner was arrested showed mala fide of thle prosecution.
It was next contended that the Senior Special Judge did not apply his mind. He arbitrarily dismissed the bail application of the petitioner. He did not even send for the record, but seemed to have been influenced by heavy sum involved in the case. According to the learned counsel, this was not the criterion to deal with the bail matter.
Learned counsel then referred to certain provisions of the Punjab Small Industries Corporation Act, 1973. These were pressed into service by the counsel in order to prove that whatever the petitioner did was in accordance with law and in good faith. He as such had not committed any error so as to expose him to any penal action.
Learned counsel submitted that purchase of land for setting Small Industries Estates was one of the normal acts of the Corporation. For this, the Corporation was expected to enter into civil contracts. He submitted that in the instant case before entering into the transaction permission had been obtained from the relevant authority. No-Objection Certificate of the Finance Department had also been obtained. Even the Ministry for Industries/ Chairman, Punjab Small Industries Corporation was informed of the project.
The petitioner had deputed a five members committee, consisting of senior most officers of the Corporation, who were to select the site and negotiate for th9 price. Accordingly, the site was selected keeping in view its suitability. The committee, after weighing the pros and cons, recommended the price of Rs.2,95,000/ per acre. When the matter was put up before the petitioner, he observed;
"approved as proposed by the Special Committee from paras.6-14/a. Take all steps to ensure that the interests of PSIC are fully guaranteed and safeguarded."
Thereafter, the matter was referred to the Legal Advisor. It was after all essential legal formalities had been complied with that the sale was effected through registered deeds. Payments were made to vendors through cheques issued by the Director of Finance. Possession of the land was taken over by the Corporation. When all this had been finalized, the petitioner was informed by letter dated 6-10...1986 of the Government of Punjab through Secretary Industries and Mineral Development as under:
"It has, therefore, been decided to annul these transactions and obtain full refund of the money paid to the vendors, if any, immediately. You are requested to take action accordingly and furnish a compliance report to the Government by 13th October, 1986 at the latest."
On receipt of the aforesaid letter, the Project Director was instructed to obtain full refund of money. He was further directed to Accordingly, necessary steps to ensure compliance of the said .letter. the Project Director by his letter dated 8-10-1986 directed the venders:
"Please return the amount of Rs.5,34,04,218/- but not later than 13th instant."
the vendors sent the following reply:-
"However, if the following proposals are accepted the undersigned will be in position to refund the amount of Rs.5,34,04,218/-:
(1) Deliver the possession of land to the undersigned with the authority to sell the same as industrial plots.
(2) And execute the registered sale-deeds to the prospective buyers. However, the amount so collected shall be deposited with you as and when received by the undersigned, but anyhow the refund will be completed within one year."
The aforesaid reply was conveyed to the Government through its Secretary, Industries and Mineral Development. The Secretary was informed that efforts shall be made to implement the decision of the Government dated 6-10-1986.
Thereafter, the petitioner wrote the following D.O. on 18-11-1986 to Mr. Hafeezullah Ishaq, the then Secretary, Government of the Punjab, Industries & Mineral Development Department:
"Subject:--Faisalabad Industrial Estate II
Dear Mr.
Intensive negotiations have continued with the vendors of the land of Small Industries Estate-II, Faisalabad. A fresh proposal for the carrying out of the Government Directive for 4nnulment and recovery of money has been worked out which is as follows:
(1) 50 of the sale price to be deposited by the vendors with the PSIC within 10 days of the communication of the Government decision; .
(ii) The remaining amount to be refunded in 3 equal instalments over a period of 6 months subject to the funishing of bank guarantees.
2. It is requested that these proposals may be approved and Punjab Small Industries Corporation allowed to act upon them immediately. "
When all this had been done and refund of the sale price started, the petitioner; was informed that he was to face a departmental inquiry and the Additional Chief Secretary to the Government of the Punjab had been appointed as Inquiry Officer. But instead " that the petitioner was involved in the present case.
Learned counsel placed on record sore other documents i show that the petitioner was not involved in the offences as alleged against him.
Counsel submitted that the petitioner remained in police custody for two weeks. Nothing was recovered from him.
The rest were the usual grounds, which were that the person of the petitioner was not required. He was prepared to furnish bond to the satisfaction of the Court. If released on bail, the petitioner was not likely to abscond.
The first argument advanced by the learned Special Public Prosecutor was that it was the petitioner who was the master mind. He cleverly manoeuvred everything. There was documentary evidence to show that the very start was based on fraud i.e., the minutes of the meeting were forged. It was submitted that this is how the ball started rolling.
The Special Public Prosecutor further contended that the two attorneys who figure in this transaction, were "set up". The payment was not made to the actual owners but to the attorneys, who were not genuine.
It was next contended that actually the bargain was struck at Rs.40,000/- per acre, but it was fictitiously shown to be Rs.2.95 lacs per acre.
It was submitted that total amount involved in this transaction comes to about Rs.5 crores. More than half had been recovered. According to the Special Public Prosecutor, this was strong prima facie evidence not only to prove that the case was genuine, but also to show the implication of the petitioner and the other accused in the alleged offence. It was further submitted that even the better half of the petitioner and his father were also involved in the racket.
The Special Public Prosecutor contended that in case the petitioner was released on bail the entire prosecution case was likely to be spoiled, as he being an influential person would tamper with the prosecution evidence.
The Prosecutor submitted that since there are reasonable grounds to believe that the petitioner is guilty of an offence punishable with imprisonment for life, the Court has no jurisdiction to grant him bail.
Reliance was placed on Khalid Rashid and another v. The State P L D 1972 Lah. 729.
He further submitted that even the offence be not punishable with imprisonment for life, the conduct of the petitioner is such, i.e. he caused heavy loss to the Pakistan Exchequer that he should not be allowed bail. In this regard he relied on Rana Muhammad Amin alias Muhammad v. The State P L D 1978 Lah. 78.
The Special Public Prosecutor has lastly submitted that the challan had been completed and would be submitted in Court as soon as sanction for prosecution was received.
Deputy Director, Anti-Corruption Establishment, who assisted the Special Public Prosecutor submitted had a strong case. They were to examine sixty-six witnesses. He submitted that in case the petitioner was allowed bail at this age no further recovery will be made.
I have gone through the two judgments cited by Special Public Prosecutor. The dictum laid down in a criminal case is not to be applied as a rule in other cases. It is a broad principle and must be applied keeping in view the facts of each, case. The scope such is limited.
Similarly, it is not expected from a Court to make any observation with regard to the merits of the case at the bail stage. That can result in prejudicing the case of either side. This was the observation made by the Honourable Supreme Court in Gulzar Hussain Shah v. Ghulam Murtaza and 4 others P L D 1970 S C 335.
In the case of Ch. Abdul Malik v. The State P L D 1968 S C 349 it was observed:
The first is that bail should never be withheld as a punishment In cases of non-bailable offences coming before the Courts, grant of bail is a relief resting primarily in the discretion of the Courts to be exercised with due care and caution as a fundamental incident of exercise of judicial powers, taking into consideration the facts and circumstances of each case. Orders or, bail application should not be considered as routine orders. Involving as they do the liberties of the citizens, they must be carefully balanced weighed in the scales of justice and 'he requirement of the relevant law, as contained in sections 496-498 of the Cr.P.C:"
It is, therefore, obvious that the bail is a matter of discretion. The word "discretion" has a vast connotation. In Stroud's Judicial Dictionary, Vo1.I, Edition 1952, it has been defined with reference to the context. The word has also been the subject-matter of discussion in many cases, both civil as well as criminal.
In Re: Taylor, 4 Ch.D 157 at page 159, Jessel, M.R. observed:
When I say "the discretionary power of the Judge", I mean that, though the Act of Parliament gave the power in the most ample terms in which language could express it, "if he should see fit" or, as the recent Act expresses it, "if the Court shall deem proper, or shall direct" yet, of course, like every other power given to a Judge, the discretion of the Judge is to be exercised on judicial grounds--not capriciously, but for substantial reasons.
In R. v. Wikes, 4 Burr. 2538, Lord Mansfield observed:
God forbid that the defendant should not be allowed the benefit of every advantage of every advantage he is entitled to by law
It is to be considered, how he is in custody.
After conviction, if he had been present in Court, he might hay- been committed, if not present, he might have been then by a capias.
It is, indeed, in the discretion of the Court, to bail a person so circumstanced. But discretion, when applied to a Court o Justice, means sound discretion guided by law. It must b governed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular."
It is, therefore, essential to take all the relevant factors into consideration.
The petitioner remained in police custody. He was subjected to interrogation, the investigation has been completed and the challan is also reported to have been submitted. The trial is likely to commence in the near future. The prosecution is to examine sixty-six witnesses.
Moreover, this is a case where the accounts shall have to be checked. The petitioner as such shall have to be by the side of his counsel.
As already observed, both sides are relying on number documents. At this stage, I am not inclined to make even a passing reference to those.
However, this is clear that the matter calls for further inquiry. Hence, I find no justification to keep the petitioner behind the bars indefinitely. He is accordingly admitted to bail.
The next question to be considered is the amount of the bail bond. Normal practice is that the amount must not be excessive, otherwise it would amount to taking away the concession given to and accused, which indirectly would mean refusal of bail. In this case the prosecution has alleged misappropriation running into crores. Hence it is not one of those cases where a nominal amount would be sufficient.
I have, therefore, to take into consideration the position of the petitioner, gravity of the offence and the amount involved.
Accordingly, I order that the petitioner shall be released on I furnishing bail bond in the sum of rupees 20 lacs (Twenty lacs) with two sureties, each in the like amount, to the satisfaction of the Senior Special Judge, Anti-Corruption, Punjab, Lahore.
M.Y.H./N-51/L. Bail granted.
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