IN THE HIGH COURT OF SINDH AT KARACHI
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 17.08.2010
Date of order : 20.08.2010
Applicants : Dewan Abu Ubaida Farooqui and
Dewan Rehan Farooqui
through M/s. I.A. Hashmi and Arshad Lodhi, Advocates.
Versus
Respondent : Through Mr. S. Ahmed Ali Shah,
Standing Counsel
O R D E R
Aqeel Ahmed Abbasi, J. The applicants/accused, who are partners of M/s.Dewan Steel Mills, have sought bail in Crime No.18/2010 registered on 16.07.2010 under Sections 406, 409, 420, 109/34 PPC read with Section 5(2) PCA, 1947 at P.S. FIA Crime Circle, Karachi. Briefly the case of the prosecution against the applicants/accused as stated in the FIR is as under:-
“During the course of investigation in respect of alleged corruption and corrupt practices in the Pakistan Steel Mills it transpired that consumer dealers in collusion with the top management of Pakistan Steel Mills namely Mueen Aftab Shaikh, the then Chairman, Sameen Asghar, the then Director Commercial and Rasool Bux Phulpoto, the then Director Admn & Marketing/Managing Director fraudulently, dishonestly with ulterior motives caused wrongful loss to the government ex-chequer and wrongful
gain to the said companies to the tune of millions of rupees regarding sale purchase of various finished products including long and flat products of Pakistan Steel Mills for the period 2008-2009. The details of beneficiaries of billet and HR are as follows:-
|
S# |
Name of Consumer Dealers of Billet |
S# |
Name of Consumer Dealers of HR |
|
1. |
M/s Ahmreli Steel Pvt. Ltd. (421) |
1. |
M/s BBI Pipe Industries Pvt. Ltd. (1341) |
|
2.. |
M/s Metropolitan Steel Corporation Ltd. (143) |
2. |
M/s Win Pipe Industries (5015) |
|
3. |
M/s Hattar Solid Steel Corporation Ltd. (4099) |
3. |
M/s Bashir Pipe Industries Pvt. Ltd. (1634) |
|
4. |
M/s Nawab Brothers Steel Mills Pvt. Ltd. (196) |
4. |
M/s Jamal Pipe Industries Pvt. Ltd. (1106) |
|
5. |
M/s Madian Steel Lahore (1878) |
5. |
M/s Ramzan Tube Mills (1850) |
|
6. |
M/s AS Steel (4079) |
6. |
M/s AN Industries Pvt. Ltd. (1596) |
|
7. |
M/s Faizan Steel, Karachi (4071) |
7. |
M/s Hajveri Steel Traders (1715) |
|
8. |
M/s Sarhad Re-Rolling Mills (600) |
8. |
M/s Victory Pipe Industries (5006) |
|
9. |
M/s Deewan Steel Mills (306) |
9. |
M/s Indus Steel Pipe Ltd (226) |
|
10. |
M/s AF Steel Re-Rolling Mill (1872) |
10 |
M/s Millat Pipe Industries (1899) |
In November 2008, the prices of Pak Steel Product were reduced upto 35% in comparison to local and International Market but when local & international market was at higher side the prices were not increased by Pakistan Steel Mills and in this way a financial loss amounting to billions of rupees was caused to Pakistan Steel.
Thus the top management of Pakistan Steel Mills namely Mueen Aftab Shaikh, the then Chairman, Sameen Asghar, the then Director Commercial and Rasool Bux Phulpoto the then Director Admn. & Marketing/Managing Director by abusing their official position, with common objective and criminal intention, fraudulently and dishonestly with ulterior motives caused pecuniary wrongful loss to Pakistan Steel and corresponding wrongful gain to the directors/owners of the above noted accused firms and others, thereby committed the offences punishable u/s 406/409/420/109/34 PPC r/w section 5(2) of PCA 1947.
Hence, a case is accordingly registered with the permission of competent authority and the investigation is taken up by the undersigned.”
2. The applicants/accused were arrested and their interim challan has been submitted before VIIth Civil Judge/Judicial Magistrate, Karachi South. The applicants/accused were remanded on judicial custody and at present they are under treatment at South City Hospital pursuant to order dated 21.07.2010 passed by VIIth Civil Judge/Judicial Magistrate, Karachi (South). At the very outset the learned counsel for the applicant has submitted that the bail application of the applicants/accused has been filed directly before this Court for the reason that the concerned Court of Special Judge is lying vacant and further this Court has a concurrent jurisdiction to grant bail to the applicants/accused under the facts and circumstances of this case. To this submission, the learned standing counsel did not raise any objection hence maintainability of the instant bail application is not considered as an obstacle in this case. Learned counsel for the applicants has argued that on perusal of the contents of the FIR it appears no case is made out against the applicants/accused who are simply registered dealer/consumer of the PSM and have made purchases of the billets from PSM at the rates fixed by PSM for all the registered dealers/consumers all over Pakistan. Per learned counsel there are about 700 registered dealers of PSM who purchase billets/raw material from PSM at their specific prevailing local market rates and the applicants had no preferential edge over other registered dealers/consumers. Per learned counsel, during the alleged period the applicants purchased the billets from PSM at the rate fixed by them like any other registered dealers which were duly converted into steel bars and sold in the local market and nothing was sold in the international market. It has been further argued by the learned counsel for the applicants/accused that the rates fixed by the PSM for the sale/purchase of the billets from time to time are comparable with the local market of Pakistan and during the alleged period also the same were in consonance with the prevailing local market rate of the billets/other products. It is further submitted that on bare perusal of the FIR it will emerge that there are certain allegations against the public functionaries at PSM, who appears to have caused loss of revenue by allegedly fixing the sale price of the billets at a lower rate as compared to the rate prevailing in the international market. Per learned counsel, though the allegations even against the officials of the PSM are factually incorrect, however, under no circumstances, present applicants/accused can be charged for such offences for the simple reasons that neither they are the public functionaries/agent etc. of PSM nor they were ever entrusted with any public property or funds which have allegedly been misappropriated. Per learned counsel, none of the ingredient to the sections proposed in the FIR are attracted in the case of present applicants/accused who are private businessmen. Learned counsel for the applicants has further argued that besides having prima-facie case on merit, the applicants/accused are also entitled to grant of bail keeping in view of the rule of consistency. In this regard he has placed on record an order passed on 04.08.2010 by another Bench of this Court in Crl. Bail Application No.730/2010 whereby one Ahmed Hassan Jeewani has been granted bail on furnishing surety in the sum of Rs.200,000/- as well as on depositing the amount, which has been earned as commission/profit out of impugned transactions. Learned counsel has also placed on record a statement of profit and loss prepared by the I/O in respect of Dewan Steel Mills, showing the estimated profit during the relevant period out of impugned transactions amounting to Rs.3,742,445.651 and submitted that applicants are also willing to deposit the said amount before the Nazir of this Court. It has been argued that keeping in view of rule of consistency the applicants/accused may be released on bail. In support of his submissions the learned counsel for the applicants has placed reliance on the following case law:-
1. PLD 1995 SC 58 (Farid Ullah Vs. Muhammad Niaz and 6 others)
2. 1982 SCMR 909 (Maulvi Muhammad Ramzan Vs. Muhammad Ismail)
3. 1980 SCMR 142 (Abdul Salam Vs. The State)
3. Conversely, the learned standing counsel alongwith I/O Muhammad Mansoor Mohmand, FIA, Circle, opposed the bail application and submitted that the instant FIR has been registered pursuant to direction of the Hon'ble Supreme Court in Suo Moto Case No.15/2009, whereby the Hon'ble Apex Court had taken cognizance of the malpractice prevailing in the PSM during the relevant period and has directed the FIA to proceed against all the persons responsible for causing loss to PSM by selling the billets at less price as compared to prevailing market rate. The learned standing counsel has placed on record the two orders dated 24.12.2009 and 25.06.2010 passed by the Hon'ble Apex Court in the suo moto case. Learned standing counsel further submitted that FIR has been registered against all the accused persons including the public functionaries of the PSM and registered dealers/consumers etc who with connivance with each other have caused substantial loss to PSM. Per learned counsel, public audit for the year 2008-09 and 2009-10 has been conducted and on the basis of audit report, statement has been prepared showing illegal profits earned by the accused persons on account of sale purchase of billets at 35% less rate as compared to CIS rates prevailing during the relevant period, so that the losses caused during such period may be recovered from accused persons. Learned standing counsel placed on record such statement which are taken on record. The learned standing counsel submitted that the amount which has been referred by the counsel for the applicant to be the profit and gain during the relevant period out of impugned transactions is based upon comparing the prices of PSM with that of local market, whereas, as per prosecution the wrongful gain obtained by the present applicant/accused rests upon international market rate which is calculated as 43,393,827.92. Learned standing counsel submitted that contention of the applicants relating to application of rule of consistency for grant of bail would be attracted only if above mentioned amount is deposited before the Nazir of this Court. Learned standing counsel has also opposed the grant of bail on the ground of illness of the applicants/accused on the ground that such illness is not as such which may be detrimental to their lives or would aggravate if applicants/accused are not enlarged on bail. Learned standing counsel concluded that since the applicants/accused has since been nominated in the FIR and a prima-facie case is made out, the applicant may not be released on bail.
4. I have heard both the learned counsel as well as I/O and perused the record. It appears that the learned counsel for the applicants has sought release of the applicants/accused on bail by arguing the case on merits as well by placing reliance on another order passed by this Court in Crl. Bail Application No.730/2010 by referring to rule of consistency. Learned counsel has also sought the bail on the ground of the serious illness of the applicants/accused and in this regard placed reliance on the reported judgments of the Hon'ble Supreme Court of Pakistan.
5. Before proceeding to decide the instant bail application of the applicants/accused persons it is pertinent to refer to para 2 of the order dated 24.12.2009 passed by the Hon'ble Apex Court in Suo Moto Case No.15/2009 which reads as follows:-
"The FIA is directed to conduct proceedings independently without being influenced in the present proceedings and if any legal remedy availed by the accused nominated in the FIRs, those shall be disposed independently without being influenced"
Perusal of the above referred directions of the Hon'ble Supreme Court that the cases registered pursuant to Suo Moto proceeding by the Hon'ble Supreme Court are required to be dealt in accordance with law on the basis of their own merits without being influenced from the Suo Moto proceedings. Perusal of the contents of the FIR and the interim challan presented in Court by the prosecution, it appears that there are two categories of the accused persons (1) the management of PSM (2) consumers/dealers i.e. beneficiary of the sale purchase of billets during the period under consideration. From bare perusal of the Sections incorporated in the instant FIR it appears that the involvement of the present applicants/accused appears to be remote and requires thorough investigation and evidence to connect the present applicants/accused with the charges mentioned in the instant FIR. The applicants/accused are out of several hundreds registered consumers/dealers who have purchased the billets from PSM as per prevailing local market rates fixed by the PSM themselves and the rate fixed by the PSM was the same for all the registered consumers/dealers, whereas, no preferential treatment appears to have been given to the applicants/accused persons. Moreover, the present applicants/accused are willing to deposit the amount which is the estimated profits out of impugned transactions prepared by the prosecution as per local market. From the perusal of the order passed in Crl. Bail Application No.730/2010 it appears that the applicant Ahmed Hassan Jeewani, who is also a registered consumer/dealer, has been granted bail merely on depositing of amount of Rs.570,000/- claimed as brokerage charges from the PSM without any reference to estimated profits on the basis of international market. The present applicants/accused have also produced the medical certificates which reflect upon their instable health and diseases including Angina, acute chronic syndrome, cervical cord, prolapse etc. which has not been disputed by the prosecution, and even at present, both the applicants/accused are under treatment at South City Hospital.
6. Keeping in view hereinabove facts and on tentative assessment of the record I am of the tentative view that the applicants/accused have made out a case for grant of bail. Accordingly, both the applicants/accused are admitted to bail subject to depositing a sum of Rs.3,742,445.651 with the Nazir of this Court and also on their furnishing surety in the sum of Rs.200,000/- each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. The amount so deposited by the applicants shall be deposited in some government profitable scheme. However, the applicant shall remain associated with the prosecution.
7. It is clarified that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by any such observation and shall decide the cases of the applicants/accused strictly in accordance with law and on the basis of evidence adduced by the parties.
J U D G E
Nadeeem