1998 P Cr (PLP)

It is thus established that the accused persons being employees of the Pakistan Steel Mills Corporation and employees of Federal Government and custodian of the public funds wilfully and deliberately by abusing their official position as such public/Government servant in active collaboration with accused Asif of Messrs Mercury Corporation, Karachi committed the act of criminal breach of trust to the tune of Rs.175 million without including interest and related financial factors and, thus, committed the offence punishable under section 409/109/34, P.P.C. read with section 5(2) Act II of P.C.A., 1947. Hence registration of this case. " I have heard Mr. Iqtidar Ali Hashmi, the learned counsel appearing for the applicant and Mr. Mubarak Hussain Siddiqui, the learned Deputy Attorney General The applicant's counsel argued that the name of the applicant does not appear in the F.I.R. as well as in the interim charge‑sheet, dated 26‑12‑1996. Thereafter, another interim charge‑sheet, dated 2‑5‑1997 was submitted wherein the applicant/accused has been shown as absconder in column 2 thereof. He further submitted that the applicant/accused throughout this period had been attending his office and was very much available and that due to mala fide intention on the part of the Investigating Agency, the applicant was challaned showing him as an absconder. His name has been included only in the second interim charge‑sheet, dated 2‑5‑1997' stating therein that during the course of investigation two more officials of Pakistan Steel have been found involved in the commission of the crime namely, Muhammad Ahsanullah Sharif and The present applicant/accused. He further submitted that no specific allegation has been made against the applicant/accused and no role has been ascribed to him. His further submission was that the applicant/accused being the Director of Production in Pakistan Steel Mills was not, in any manner, concerned with the purchase of 3rd Converter and he was also not concerned with the finances of the Mills and had also no connection whatsoever with making any payment to the contractors or to any other person. The allegations against the applicant/accused of his participation in the alleged offence are baseless. He further argued that the applicant/accused is a sick person and is an old patient of heart ailment and has been operated for bypass surgery and is on regular medication and diet. According to the learned counsel for the applicant, health condition of the applicant is such that he cannot take strain of any nature and his remaining in jail shall be detrimental to his health and life. Learned counsel. Had drawn the attention of the Court towards the certificate issued by Chief Medical Officer of Pakistan Steel Mills which was filed before the trial Court also. According to the learned counsel, the trial Court, during the hearing of the bail application was pleased to order for medical examination of the applicant/accused at the National Institute of Cardiovascular Diseases, Karachi and the applicant/accused was referred to National Institute of Cardiovascular Diseases for medical examination and report. The applicant was, accordingly, examined at the said institute and a report was submitted to the learned trial Court under a covering letter, dated 13‑6‑1997. Learned counsel has filed a certified copy of the covering letter as well as medical report alongwith this bail application. He further submitted that other accused persons, who were arrested in this case, have been released on bail either by this Court or by the trial Court and, therefore, on the rule of consistency, he argued that the applicant/accused is entitled to the grant of bail. The learned counsel has filed certified copies of the orders granting bail to the other accused namely, S.N. Abbasi and Sajjad Hussain. The learned Deputy Attorney‑General opposing the bail application argued that the payment to the contractor was made on the report/recommendation of the applicant/accused. In this regard, he relied upon a note, dated 13‑9‑1995 signed by the applicant/accused and others. He further submitted that it is not the complaint of the applicant that the applicant cannot be treated for his diseases while remaining in jail. The other accused persons named in the F.I.R., namely, Sajjad Hussain, the ex‑Chairman of Pakistan Steel Mills Corporation and S.N. Abbasi, Director Finance have already been granted bail. It is an admitted position that the name of the present applicant/accused does not appear in the F.I.R. as well as in the interim charge‑sheet, dated 26‑12‑1996. For the first time the name of the present applicant/accused appeared in the second interim charge‑sheet, dated 2‑5‑1997 wherein it has been alleged that during the course of investigation two more officials of Pakistan Steel Mills have been found involved in the commission of the crime, the applicant being one of them. It is not mentioned that how the applicant was involved in this crime as no role had been attributed to the present applicant. It was argued by the applicant's counsel that after the contract for procurement of 3rd Converter was made by Ex‑Chairman of the Pakistan Steel Mills in the year 1992‑93 and a sum of Rs.135 million was paid to Messrs Mercury Corporation as mobilization advance against bank guarantee in three instalments with effect from 30‑8‑f993 to 12‑10‑1993, the name of the present applicant/accused did not figure anywhere. It is further submitted that a delegation of three members of the Pakistan Steel Mills Corporation was sent to the USSR in connection with some other work and the present applicant/accused being one of the members of that delegation was, therefore asked to look into the position of the 3rd Converter also. Accordingly, on his return, he submitted the note, dated 13‑9‑1995 mentioning therein that in USSR he had visited the contractor who had told him that the converter will be ready for shipment. A perusal of the note, dated 13‑9‑1995 reveals that the applicant/accused in the note has stated that payment of the amount to the contractor may be considered. The learned counsel appearing for the applicant relied upon Abbas Salam v. The State 1980 SCMR 142 wherein the Lordships of the Supreme Court observed that the Court should maintain equity of treatment between persons placed in similar situations and similar circumstances. Further, it was observed that there was no distinction between the case of the petitioner and case of the co‑accused and bail having been allowed to co‑accused, privilege of bail should not have been refused to petitioner. The learned counsel further relied upon Shahzad v. The State 1996 PCr. LJ 978 wherein the principle laid down is that if the case of the accused being at par with that of the co‑accused, bail should not have been refused to him and accordingly accused was admitted to bail. In another reported case, relied upon by the learned counsel for the applicant Muhammad Naseem alias Naseemo v. The State 1996 PCr.LJ 1302 a Division Bench of this Court held that where an accused is granted bail then the other co‑accused placed in similar and identical circumstances should, as per rule of consistency, also be released on bail. Arguing the bail application on the ground of illness of the applicant/accused, the learned counsel relied upon the medical certificates filed alongwith the bail application and on the case reported in Sardar Khalid Umer v. The State 1989 MLD 4938 wherein the law laid down is that law does not require that a person can be released on bail only if he is suffering from sickness or ailment in a manner that he is likely to die soon or cannot be treated in jail or under the supervision of jail authorities. In this reported case, the relevant observations are as under:‑‑ "From the certificate of Dr. Rauf Yousuf, dated 15‑9‑1970 and from the certificate of Dr. Shahryar Ahmed Sheikh, both Heart Specialists, there is no manner of doubt that the petitioner has been having treatment of heart ailment. The fact that he has been attending to his duties as a member of various bodies would not ipso facto show that he was not suffering from the disease. So also the fact that he did not take up this plea at the time of pre‑arrest bail application. The disease is such that fatal attack can come at any time and the detention in jail would obviously be a stress which may hasten the onslaught. The law does not require that a man can be released on bail only if he is suffering from sickness or ailment in a manner that he is likely to die soon, or, cannot be treated in jail or under the supervision of the jail authorities. " The admitted fact in this case is that the applicant had been operated for bypass surgery and, according to the certificate issued by Pakistan Steel, Medical Department it has been clearly mentioned that the applicant/accused has been under constant medication and medical surveillance. Further the report, called for by the trial Court from the National Institute of Cardiovascular Diseases, also mentions about the heart ailment of the applicant/accused and in conclusion the Doctor mentioned that the applicant suffers from Post CABG Angina, therefore, needs rest, regular medication and further evaluation and that as a cardiac patient any physical or mental stress will have deleterious effect on is cardiac condition. In the case reported in Malik Muhammad Yousufullah Khan v. The State PLD 1995 SC 58 the Honourable Supreme Court has laid town the criteria for grant of bail on the ground of illness of the accused and principle of appreciation of Medical opinion. The observations of the Supreme court areas under:‑‑ "If the Court has any doubt or suspicion about the authenticity of the opinion of the Medical Board constituted under the direction of the Court to examine condition of the accused it can either summon the members of the Board to satisfy itself as to the correctness of the opinion given by the Board or the accused could be referred to any other medical expert in the relevant field for a second opinion‑‑ Court, 7 without following such procedure cannot be in a position to form its independent opinion as to the condition of the accused nor it will be a safe course for the Court to follow‑‑ Medical Report being highly technical, opinion expressed by the Medical Board cannot be brushed aside lightly by the Court in the absence of any counter‑opinion ‑or any medical literature placed before ‑ the Court to contradict the, opinion given by the Board. " From the above discussion, the following points emerge for consideration: (a) If the Court refers the accused for examination before a Medical Board or before any specialist, then their report should not be brushed aside by the Court. If the Court doubts the correctness of such report, the Court should follow the rule laid down in PLD 1995 SC 58 referred to above. (b) The view that an accused on the ground of illness cannot be released on bail unless the illness with which the accused is suffering is of such a nature or at such a stage that the accused is likely to die soon in jail, is not a correct view. See Sardar Khalid Umer v. The State 1989 MLD , 4938 referred to above. (c) An accused should be treated equally in the same manner under the same circumstances in which a co‑accused has been treated which in other words has been held' as the rule of consistency. See Abdus Salam's case 1980 SCMR 142 referred to above. Summing up the above discussion in the light of points (a) and (b), I am of the opinion that the accused/applicant is entitled to grant of bail on the ground of his illness, as considering the Medical Certificate issued by the National Institute of Cardiovascular Diseases, I am of the view that the treatment and care of the cardiac ailment of the accused is not possible in jail. Secondly on the rule' of consistency the accused/applicant is also entitled to grant of bail as the two main accused namely, S.N. Abbasi and Sajjad Hussain have already been released on bail. (see point "c" above)., In view of the above discussion and in the light of the cases discussed above, this bail application is granted and the applicant/accused is ordered to be released on bail on his furnishing one solvent surety in the sum of Rs.2,00,000 (rupees two lacs) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. Above are the reasons of the short order announced in Court on 27‑6‑1997. H.B.T./M‑233/K Bail granted.