1994 P Cr (PLP)

The brief facts as given in the F.I.R. lodged by Ehsanullah, Assistant Director, F.IA., I&AS, Karachi, are that consequent upon an enquiry No.812/93 it transpired that on 2-11-1991 an agreement was signed by Messrs Daewoo Corporation, Korea with the Ministry of Communication, Government of Pakistan wherein they offered to supply their Daewoo Racer Car as a taxi at the cost of $ 5,500 per unit. Subsequent thereto another agreement dated 22-12-1991 was signed by the Korean Corporation with Messrs Mehran Motor Car Company, Karachi, appointing them as the agents/distributors, in Pakistan on behalf of the Korean Company. It is stated that Messrs Mehran Motor Car Company fraudulently made import of 4,600 units Daewoo Racer Taxi on enhanced price of $ 6,245 per unit. 7,222 more taxis were also imported at the rate of $ 6,800 per unit as against agreed C.I.F price of $ 5,500 per unit. The partners of Messrs Mehran Motor Car Company, namely, Sikandar Abdul Karim (applicant herein), Nazeer Haji Usman and Riaz Haji Usman are alleged to have over invoiced the price and used the same before the Customs Authorities than the already agreed price of $ 5,500, causing substantial loss of foreign exchange to the public exchequer, as under the scheme, 90% of the cost was made by Government of Pakistan through authorised banks. It is also stated that in order to accomplish their criminal designs the partners of Messrs Mehran Motor Car Company as agents of their principal, submitted the price schedule for these taxis to the General Manager, PACO, Ministry of Production for getting local price of unit fixed by C&F value at $ 6,895 per unit instead of $ 5,

500. The agents are also alleged to have shown local expenses at $ 1,294 per unit to get determined the local price of unit as Rs.2,04,000 as against Rs.1,82,

590. It is also stated that at subsequent stage Government Officers and the concerned staff of P&W Wing Ministry of Industries approved the inflated price as already approved by PACO by fixing the value of taxi on enhanced price in Pak. Rs.2,04,000 per taxi instead of the actual price of Rs.1,82,

590. It is also stated that again on 12-4-1993 the Officers of Ministry of Industries fixed the price per unit in Pak. Rs.2,45,000 as against the actual price of Rs.2,07,

910. It is alleged in the F.I.R. that the above acts committed by the persons, belonging to public and private sector, with common intention, wilfully and deliberately on the basis of false documents defrauded the Government exchequer and thus rendered themselves liable under sections 409, 420, 468, 471, 34, P.P.C. read with section 5(2) of Act 11 of 1947 and under various sections of Customs Act. I have heard the learned Advocate appearing for the applicant, the Deputy Attorney-General for Pakistan and have also perused the order of the learned trial Court refusing bail. It has been contended by applicant's learned Advocates that from the facts in the F.I.R no offence under section 409 of P.P.C. is made out, as admittedly applicant was not entrusted with any property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent and it cannot be said therefore, that he committed criminal breach of trust is respect of that property. It is further contended that the provisions of sections 420, 468 and 471 of the P.P.C. are also not attracted inasmuch as, the applicant has neither cheated anyone nor dishonestly induced someone for the delivery of property, has not committed any forgery for the purpose of cheating nor has used as genuine a forged document. It is argued by the learned counsel that offence of cheating under section 420 of P.P.C. is punishable with imprisonment for a term which may extend to 7 years and also fine, the offence under section 468 of P.P.C. is punishable with imprisonment for a term which may extend to 7 years and also fine and offence under section 471, P.P.C. is punishable in the same manner as if the accused has forged such documents and would be liable to the same punishment as for offence under section 468, P.P.C. Except the offence under section 409 which is not spelt out from the contents of the F.I.R. itself, the rest of the offences are not covered by prohibitory clause of subsection (1) of section 497 of Cr.P.C. It is also argued that section 5(2) of Act 11 of 1947 can also not be attracted in the case of applicant who is admittedly not a public servant within the meaning of section 21 of P.P.C. and because no official of the Ministry of Production, Government of Pakistan, is made an accused, applicant cannot be tried for said offence. In support of these contentions learned Advocates have referred the following judgments:-- (1) Syed Wajid Hussain v. The State and another 1975 S C M R 165, (2) Chaudhry Muhammad Aslam v. The State 1992 M L D 880, (3) Ashraf Butt v. The State 1985 P Cr. L J 1467, (4) Shah Muhammad and another v. The State 1991 P Cr. L C 65, (5) Javid Iqbal Awan v. The State and another 1990 S C M R 1194, (6) Ghulam Qasim alias Muhammad Qasim and another v. The State 1991 P Cr. L J 2418, (7) Ijaz Akhtar v. The State 1978 S C M R 64 and (8) Amir v. The State P L D 1972 SC

277. Mr. Ikram Ahmad Ansari, learned DA: G. has opposed this bail application and has placed on record today a brief note of his arguments in which it is stated that in October, 1991 an official delegation led by Commerce Minister visited Seoul in connection with the Second Trade Ministers' Meeting when the Daewoo Group offered their Racer Car to be plied as a taxi in Pakistan on F.O.B. US $ 5,

100. On 2-11-1991 a memorandum of understanding (agreement) between Daewoo Corporation and Government of Pakistan was signed, the former having offered their car of 1,500 cc at US $ 5,

500. The Director-General Communications on 10-12-1991 informed the General Manager Messrs Daewoo Corporation, Karachi Office, that the Government of Pakistan had approved to import said car under Prime Minister's Public Transport Scheme. It was further intimated that the representatives/ distributors of Messrs Daewoo Corporation would be entitled to import the vehicles once they were registered with the Director-General Communications as importers of the public transport. Accordingly, on 22-12-1991 Messrs Daewoo Corporation signed an agreement with Messrs Mehran Motor Car Company appointing them as the distributor for-Pakistan to import the said taxi cars. It is stated that in the agreement, dated 22-12-1992 Messrs Daewoo Corporation and Mehran Motor Car Company with the interest of each other (the underlining is by me but the words are the same as used by Deputy Attorney-General in his written note of arguments) enhanced the C.I.F. Price from $ 5,500 to $ 6,745 by adding the cost of items which were included in the price of $ 5,

500. It was also stated that the Mehran Motor Car Company opened L.Cs. at the rate of $ 6,245 for 4,600 units and they retained their agency commission at $ 500 per unit in Pakistan. Thereafter, it is stated that Messrs Mehran Motor Car Company on the one hand in order to get the higher and selling price fixed, submitted a false price schedule in PACO, and Ministry of Industries showing C&F price as $ 6,895 with agency's commission as US $ 350 per unit and also misdeclared before the Customs Authorities their agency's commission as $ 200 per unit instead of $ 500 in order to evade the leviable taxes like Iqra Surcharge, Flood Relief Fund, Income-tax and note, according to DA.-G. constitute offences under various provisions of law mentioned in F.I.R., which disentitle applicant to bail. I have gone through the record and also considered the contentions raised by the learned counsel. Before proceeding further, I consider it necessary to mention that before the registration of F.I.R. in this case on 29-1-1994 at 22-05 hours, another F.I.R. almost similar in nature was registered against the applicant Sikandar Abdul Karim by Inspector Faqeer Muhammad of F.IA., I&AS, Seaport Karachi, on 3-12-1993 under section 409, P.P.C. read with section 5(2) of Act II of 1947. The facts in said F.I.R. were almost the same as in the present F.I.R. which is registered on 29-1-1994, on the basis of which the applicant is arrested. Mr. Khalid M. Ishaque, learned Advocate for the applicant, during the course of arguments pointed out that although applicant was granted bail in the earlier case and required surety was furnished, applicant was to be released by Central Jail Authorities before 4-00 p.m. but he was not released till 9-00 p.m. on 29-1-1994, but after his release at that time, he was again arrested in this case which is registered on 29-1-1994, at 22-05 hours. Applicant is said to have been arrested by Inspector, Faqeer Muhammad, as soon as he came out of jail at 9-30 p.m. The arrest of the applicant, according to the learned Advocate, on the face of it is mala fide inasmuch as, although the facts of earlier F.I.R. recorded on 3-12-1993 and the instant F.I.R. were identical, except of course certain additional allegations, deliberate attempts are made to register number of F.I.Rs. to disentitle applicant to grant of bail. The earlier bail application filed on behalf of the applicant (Criminal Bail Application No.52 of 1994) had come up before me and I had granted bail, besides others, on the ground that from the facts of F.I.R. no offences under section 409 of P.P.C. was made out nor applicant could be tried for the said offence as he was not a public servant or unless he was tried alongwith a public servant. I had also observed that because applicant was not a public servant, the application of section 5(2) of Act II of 1947 was unwarranted. The contents of the F.I.R. and the written note of arguments, filed by the DA.-G. would at the most show that the applicant, by misrepresentation of facts charged commission at the rate over and above the agreed rate and that there had been a breach of terms of conditions between Daewoo Corporation on one and the Government of Pakistan on the other hand. Nothing has been suggested on behalf of the State that applicant committed any forgery for the purpose of cheating or used as genuine a forged document and that his case would fall under sections 420, 468, 471, P.P.C. As stated earlier no offence under section 409 of P.P.C. is made out. But assuming that the offence if any falls within the preview of remaining section of P.P.C. none of the said offence is covered by the prohibitory clause of subsection (1) of section 497 of Cr.P.C. That being the position, the Superior Courts have always been inclined to grant bail rather than to withhold. The prosecution case is mainly based on which by now is with the prosecution and its tampering by accused could not be possible, In the case of Syed Wajid Hussain 1975 S C M R 165, the respondent floated a company inviting verified claim holders to get property in lieu of claim through said company and the petitioner entrusted his compensation books to company for getting specified flats. The company obtained flats but did not transfer to the petitioner as promised. The accused was tried for an offence under section 420, P.P.C. but was acquitted by a Magistrate and a reference was made by the Sessions Judge to the High Court under section 438, Cr.P.C. and recommended that the order of acquittal be set aside. The High Court of Sindh declined to accept the reference which was challenged by the complainant before the Supreme Court of Pakistan and it was observed that the dispute was one of civil nature and the question whether the respondent committed any offence of cheating in respect of compensation books was doubtful. In the case of Chaudhry Muhammad Aslam 1992 M L D 880, the bail application of an accused charged for offence under sections 408, 420, 468, 34, P.P.C. was heard by a learned Judge of this Court who observed that the offence with which accused was charged did not fall within the prohibitory clause of section 497 of Cr.P.C. and further observed that bail in such a case is a rule while its refusal an exception. It was further observed that the case against accused being not of exceptional nature, mere fact that the embezzled amount was sufficiently large, by itself was no ground for refusing bail. In the case of Ashraf Butt 1985 P Cr. L J 1467 it was observed that the case against accused was based on documentary evidence and likely to take some time and the question of his absconsion also was subject to scrutiny. It was held that reasonable grounds existed for further enquiry in the matter and bail was allowed. In the case of Shah Muhammad and another 1991 P Cr. L J 65 it was observed that the points argued on behalf of the accused for bail were patent on record and could not be controverted and benefit of doubt on the basis of said factors could be extended to accused even at bail stage as their case would require further enquiry and would thus fall under section 497(2), Cr.P.C. In the case of Javid Iqbal Awan 1990 S C M R 1194 it was observed that continued detention of an accused for the purposes of effecting recovery of money alone was not considered justified. It was further observed that expeditious trial and availability of accused for that purpose might be more conducive to the just and expeditious termination of proceedings and the accused was admitted to bail. In the case of Ghulam Qasim 1991 P Cr. L J 2418 the accused charged for offences under sections 468, 471 and 420, P.P.C. was granted bail by a learned Judge of the Lahore High Court who observed that the offences under sections 468 and 471, P.P.C. were not cognizable nor police obtained any warrants or permission from Magistrate to register or investigate the case under these sections and offence under section 420, P.P.C. being bail-able, it was held that there was no alternative but to accept the bail application. In the case of Ijaz Akhtar 1978 S C M R 64 it was observed that the fact of amount allegedly embezzled by accused being large was by itself no ground for refusing bail. It was further observed that even the apprehension that accused might tamper with evidence if enlarged on bail was also no ground for refusing bail and that in such eventuality the State could prosecute its remedies in the Sessions Court. In the case of Amir P L D 1972 SC 277 it was observed that for the purposes of bail law not to be stretched in favour of the prosecution and the benefit of doubt if any arising must go to the accused. Learned DA.-G. who submitted a brief note signed by Investigating Officer did not cite any case-law to rebut the contention raised by applicant's learned counsel. Investigating Officer who was also present did not controvert allegation regarding applicant's release from jail on 29-1-1994 at 9-00 p.m. and arrest thereafter in this case. In my view, the investigating agency appears to have acted mala fide inasmuch as more than one F.I.Rs. are registered against the applicant in respect of the same contractual obligations. No public servant involved in the racket is arrested so far nor it is shown as to which public servants are proposed to be joined as accused and as to the evidence available against them. As a result of the above discussion I am of the considered view that the case of the applicant requires further enquiry as there are no reasonable grounds to believe that the applicant is guilty of the offences with which he is charged. I am, therefore, inclined to grant him bail. Applicant shall be so released if he furnishes one surety in the sum of Rs.5,00,000 (Rupees five lacs) with P.R. bond in the like amount to the satisfaction of the learned trial Court. Any observations in this order which are tentative in nature and are made for the purpose of deciding this bail application shall not influence the trial Court while deciding the case. N.H.Q./S-1069/K Bail granted.