2011 PLP 1893 (SCMR)

Laws Cited

Representation

• Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners.
• K.K. Agha, Additional A.-G., Qaisar Musud, Deputy Director, Khalid Jamil, A.D. and Bashir Ahmad Sh. AD for Respondent (in all cases).
• Date of hearing: 18th May, 2011.
• 3. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court entered appearance on behalf of petitioners and urged with vehemence that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the petitioners are innocent and have been roped in a false and concocted case by the prosecution. It is argued that the petitioners are members of "Negotiation Committee" and their opinion whatsoever was not binding on Board having a little persuasive value and therefore, no liability could be fixed on the petitioners being little fry of National Insurance Corporation of Pakistan Limited (NICL). It is also contended that the petitioners have never misused or abused their authority and tendered opinion in good faith and duly substantiated by the documentary evidence which escaped the notice of learned single Judge of High Court of Sindh, Karachi resulting in serious miscarriage of justice. It is urged with vehemence that only a limited mandate was given to the Management Committee to negotiate the price of land which was tentatively determined between 87.5 million per acre to 90 million per acre and finally decision was to be made by the Investment Committee through Board of Directors. The Management Committee finally after having due deliberation and hectic efforts in the interest of NICL, determined the price as 90 million per acre and while doing so no illegality/irregularity whatsoever was committed. It is contended time and again that final decision qua purchase of land was made by the Board of Directors pursuant to the powers as conferred upon it under Section 196 of the Company Ordinance and Memorandum of Association of the Company. It is argued that it was a case of sheer discrimination as Ejaz Ahmed Mellau, Executive Director, Operation, Nusrat Hussian, G.M. and Qamar-uz-Zaman Chaudhry, Director have not been nominated in the F.I.R. by whom a pivotal role has been played in the transaction and thus FIA has not acted in a fair and transparent manner. It is also argued that proper opportunity of hearing was not afforded and no explanation whatsoever was sought from the Management Committee that how and in what circumstances price for land in question was recommended. It is pointed out that site was visited by Investment Committee of the Board of Directors comprising of Chairman and two Members and thereafter it was resolved unanimously on 29-4-2009 to enhance Real Estate Investment percentage ratio to 40% of total investment which aspect of the controversy has been totally ignored and the entire burden has been shifted to the Management Committee without any rhyme or reason. It is argued that there was absolutely no conspiracy culminating into purchase of land as alleged and the characteristic of factum of the conspiracy have not been considered causing prejudice against the petitioners. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court laid much stress on a letter of EDO, Karachi showing rate of Rs.9.5 crore per acre and thereafter Investment Committee in its meeting held on 1-7-2009 constituted a Negotiating Committee and finally the Board of Directors approved the recommendations of the Committee qua purchase of land at the rate of 9 crores per acre on 3-8-2009. It is further contended that letter addressed by the EDO, Karachi determining the price of land should have been kept in view as nothing has come on record showing that any of the petitioners had ever approached the EDO for procuring the said letter. It is also contended that price of land in question was negotiated under the supervision and guidelines provided by Investment Committee. It is also argued that the report prepared by Messrs Sadruddin Associates is indicative of the fact that recommendation of the Negotiating Committee was in accordance with the prevailing market price. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court has also invited the attention of the Court to a press conference of Mouzam Jah, Director, FIA admitting that an amount of Rs.52 crores has been recovered and thus it can be inferred safely that no substantial loss has been caused to NICL or public exchequer. It is mentioned that the statements of Mumtaz Ali Channa, Mukhtiarkar (Revenue) and Sher Hussain Shah, P.Ws. got recorded under section 161, Cr.P.C. make it abundant clear that what was the existing price in the locality.
• 4. Mr. K.K. Agha, learned Additional Attorney-General for Pakistan entered appearance on behalf of State and while repudiating the view point as canvassed at bar by Syed Ifikhar Hussain Gillani, learned Senior Advocate Supreme Court on behalf of petitioners supported the order impugned for the reasons enumerated therein. The prime contention of learned Additional Attorney-General on behalf of respondent is that no letter whatsoever was written by the EDO and the land in question was never valued at the rate of Rs.9.25 crores per acre and in this regard report of handwriting expert has been mentioned by whom it has been opined that the signatures were not genuine and at variance with admitted signatures of EDO. The learned Additional Attorney General on behalf of respondent has stressed that the case in hand can be cited as a classical example of corruption, misuse of power and abuse of authority and the petitioners intentionally and deliberately with connivance of each other have committed the alleged offence by causing a huge loss to the public exchequer as NICL owned by Government of Pakistan. In so far as the report of Ahmed's Associates is concerned it is pointed out that it was an incomplete report without any explanation that as to how the price of land in question was determined. It is pointed out that Negotiating Committee with the connivance of Chief Executive of NICL by distorting the real and factual position misled the Board of Directors to purchase the land at such a high price. It is explained that Nusrat Hussain and Qamar-uz- Zaman Chaudhry have not been included in the list of accused persons in view of their minor role having no concern whatsoever with the commission of alleged offence.
• 5. We have carefully examined the respective contentions as agitated on behalf of the parties, perused the entire record with eminent assistance of learned counsel for the parties and examined the order impugned with care and caution. Let we make it clear at the outset that while deciding these petitions we are not dilating upon the questions of guilt or innocence of the petitioners but we would focus our attention on the point that as to whether on the basis of alleged incriminating material a prima facie case is made out against the petitioners or otherwise? At first instance we are impressed by the arguments made by Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court that the price was determined by the EDO (Revenue) by means of letter dated 4-12-2010 but subsequently it revealed that such letter was never written but on the contrary it was found a fictitious document. Handwriting expert's opinion that the signatures of EDO, Karachi were not genuine can be considered for the purpose of examination as to whether a prima facie case is made out or not. How this fictitious letter was procured and to whom the letter dated 4-12-2010 was addressed and at whose instance it was so done but could not be answered by the learned Senior Advocate Supreme Court on behalf of the petitioners. It is an admitted fact of the case that Board of Directors had acted on the advice and report of the Management Committee, hence by no stretch of imagination it can be inferred that Management Committee had played no role. Besides that the report furnished by Ahmed's Associates is neither comprehensive nor any reasoning has been given for determining the price of land in question and it appears to be a defective, incomplete and vague report. No analysis had been made out in the said report regarding prevalent market price in the vicinity and any past transaction made in this regard. The Members of the Management Committee were held responsible for causing loss to NICL and therefore it is hardly believable that they had acted in a good faith or with bona fide intention because the land in question was valued at a very exorbitant rate and thus substantial loss has been caused to the public exchequer. The petitioners betrayed the confidence of the Board of Directors and more so such a determination could be without connivance of the petitioners with each other. Whatever the case may be, the above mentioned factors cannot be decided at this stage and determination whereof would be made by the learned trial court on the basis of evidence which is yet to be recorded. We have also focused our attention that as to whether it is a case of sheer discrimination as Mr. Qamar-uz-Zaman Chaudhry has not been shown as an accused person. A careful scrutiny of the entire record would reveal that no role whatsoever has been played by Mr. Qamar-uz-Zaman Chaudhry in the negotiation or making any recommendation for the price on which the land in question was purchased. It may not be out of place to mention here that Mr. Qamar-uz-Zaman Chaudhry was merely a Director and therefore, no managerial/material role whatsoever was assigned to him qua the purchase of land in question and factum of discrimination cannot be proved on the basis of bald allegation. In so far as the role of Mr. Nusrat Hussain is concerned, no doubt he had signed the sale-deed but it was soon after the decision of Board of Directors which was made at the recommendation of Management Committee. It would not be in the interest of justice, fair play and equity to involve Mr. Qamar -uz-Zaman Chaudhry as there is absolutely no iota of evidence available on record connecting him with the commission of alleged offence. In so far as the applicability of sections 409/420/ 468/471 and 109, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 are concerned that can only be decided by the court of competent jurisdiction on the basis of evidence which is yet to be recorded and it would be too premature to offer any comments in this regard. It may not be out of place to mention here that "it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles. Leave to appeal is not granted by the Supreme Court where the grievance is that the High Court has, in the proper exercise of its jurisdiction, appreciated and assessed evidence or exercised discretion in a manner with which it is easily possible to disagree". Abdul Haq v. The State (1979 SCMR 254), Ghulam Nabi v. The State (NLR 1978 Cri 328), Sultan Khan v. Amir Khan (PLD 1977 SC 642), Haq Nawaz v. The State (1969 PCr.LJ 358), Haq Nawaz v. The State (1969 SCMR 174), Allah Diwaya v. The State (PLD 1969 SC 98). It is well settled by now that "since the grant of bail is a matter purely in the discretion of the Courts below, Supreme Court does not interfere with the discretionary order unless, it is satisfied that the order is perverse or has been made in clear disregard of principles of law". 1986 SCMR 1504, 1969 PCr.LJ 415, 1969 SCMR 202, Zaro v. The State (1974 SCMR 11), Tufail v. State (1986 SCMR 1504). The learned single Judge of High Court of Sindh, Karachi has tentatively appreciated the evidence in accordance with the material available and has arrived at the conclusion that prima facie a case is made out against the petitioners which being well based does not warrant interference.

Headnotes / Summary

Judgment & Decree