P L D 2003 Karachi 526 (PLP)

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 h 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 them 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 or 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.C 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.C 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 assessment 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 I 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 hic 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 iurisdiction Qver 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 or. which there is a difference of opinion, as the whole case or appeal is not before him." The Supreme Court found similarity arid 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 s 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 or 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; (f) 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 to 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 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 37 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 P jurisdiction to decide the point of difference, the jurisdiction for deciding the F 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 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 Yasoob' after the name of the horse of the Holy Prophet (peace be upon hum). 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 know how. 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 lean 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. Hard castle 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 or 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 counsel 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 Abdur 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 or 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 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 Appliance, 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 back 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 least 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 dis investment 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.63,000 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 vas 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 cage 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 Le through representation or presentations was only to convince a customer to purchase the goods from the seller, therefore, the Army role information 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 presented in the Board meeting, the Board did not approve it. It was also contended by and 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 end the scope, jurisdiction and power of the referee Judge. The referee Judge s not seized of the whole matter which is still seized by the referring Judges end 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, 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 he jurisdiction to formulate the point and or points of difference where the earned 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 vas approved by apex Court in Muhammad Sayyar (supra) and I may quote he 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 referee Judge 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 Ghani Sharif v. State (PLD 1961 Dacca 21) and (2) Pakistan Through The Secretary, Ministry of Finance v. Hard castle (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 and its disposal within 30 days. The first case emanates from the provisions 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. Hard castle (Waud) (Pakistan) Ltd., emanated from the provisions of Sea Customs Act (repealed), involving a case of mis declaration. 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 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) Hail 6liutatn 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 Sarmad 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 Siddiqe ul-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 quid 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 snake 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 mala fidly 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 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 ana 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 the 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, PAP, 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 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 Beach 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 Re -Sitaramayya 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. Lari, 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 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, 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 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 Z 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 vigorous 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 I 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. 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 M.B.A./M-528/K Reference answered