1999 PLP 653 (MLD)

Abdul Khaliq Khan for Petitioners. S.D. Qureshi and Ch. Muhammad Siddiq Minhas for the State. This order shall dispose of Cr. M. No. 5403-B of 1996 (Malik Zahoor Ahmad and others v. 'he State), Cr. M. No. 5404-B of 1996 (Malik Zaboor Ahmad and others v. The State), Cr. M. No. 5405-B of 1996 (Ch. Abdul Majid and others v. The State), Cr. M. No.5406-B of 1996 (Ch Abdul Majid and others v. The State) and Cr. M. No. 5407-B of 1996 (Mahr Riaz Akhtar and another v. The State),

2. One Lad Khan, Proprietor M/s. Painda Khan & Company, Government Contractor submitted an application before Minister for Anti-Corruption, Punjab, Lahore for taking necessary action against Executive Engineer and other functionaries of Irrigation Department of Government of the Punjab. According to the complainant he was registered as Contractor with Irrigation Department and he was awarded a contract to construct a J. Head Spur at Trimmu Barrage and was paid 2 1/2 crores for the work done. According to the Contractor Rupees fifty lacs were still outstanding and was issued a cheque for a sum of Rs.29,58,461, which however, was not handed over to complainant and that the Executive Engineer demanded a sum of Rs.11,83,000 as illegal gratification but the Contractor declined to oblige and the cheque was got encashed by the Officials themselves.

2. An enquiry was launched on the application submitted by Lal Khan and the Anti-Corruption Establishment came to the conclusion that Executive Engineer Irrigation Department, Trimmu had invited tenders for 52 works involving a sum of Rs.1,67,00,000, but the work was not handed over to any of the Contractors and they awaited for the flood season to commence. Resultantly, case F.I.R. Nos.13/96, 14/96, 15/96, 16/96 and 17/96 all dated 4-2-1996 for offences under section 409/109, P.P.C. read with sections 5(2) of the Prevention of Corruption Act, 1947, and 161, 420/468/471, P.P.C. were registered against the petitioners.

3. The petitioners applied to the learned Special Judge, Anti-Corruption, Punjab, for grant of bail in anticipation of arrest which application was dismissed by order dated 14-10-1996. The petitioners thereafter submitted titled application under section 498, Cr.P.C. and were granted bail in anticipation of arrest, ad interim, on 24-11-1996. The applications have been placed before me under the orders of Hon'ble Chief Justice for disposal.

4. Learned counsel for the petitioners submitted that M/s. Painda Khan, Government Contractors were awarded contract for construction of J. Head Spur at Trimmu Barrage and after completion of work which was duly checked by NESPAK, the contractor was paid the amount due; and the Contractor submitted an application before Minister for Anti-Corruption with malice on the asking of certain local politician and the purpose was to remove the Executive Engineer from Trimmu Barrage so as to accommodate another functionary of their choice. It was contended that the Anti-Corruption Establishment launched an enquiry without justification and the matters which had absolutely no nexus with the applications submitted by M/s. Painda Khan were also looked into and cases were registered without there being any basis for the same. It was submitted that during enquiry conducted no material was collected by the Investigating Agency to show that the petitioners had mis-conducted or had obtained any illegal gratification or had given undue benefits to any Contractor of their choice. It was argued that the registration of case was motivated and the petitioners' cases fulfil all the requirements of grant of bail in anticipation of arrest and they deserve the concession to be extended. Learned counsel for the State on the other hand did not seriously oppose the grant of bail to the petitioner and submitted that a sum of Rupees 7 lacs was due to M/s. Painda Khan, which was yet to be paid to him and there was some basis for the cases registered against the petitioners.

5. Learned counsel for the parties have been heard and record seen with their assistance. A cheque for a sum of Rs.29,58,461 was issued in favour of M/s. Painda Khan, which was later withdrawn and cancelled. The explanation given by different functionaries is that M/s. Painda Khan were paid the entire amount due to them and this cheque was meant for another Contractor, but was erroneously issued in its name due to clerical mistake and was withdrawn when the omission was noticed and nothing unlawful was done by any of the functionaries of the Irrigation Department. This position has been acknowledged by the Investigating Officer present in Court. It has also been pointed out by the Investigating Officer that a sum of Rs.29 lacs was not due to M/s. Painda Khan and cheque could not have been issued in his favour. The second limb of the allegation against the petitioners is to the effect that certain tenders were invited for works to be allotted but the same were not taken to the logical end and the presumption was that the petitioners had mis-conducted in the matter. The record reveals that the allegations against the petitioners are I essentially presumptive in nature and the Investigating Agency has not collected any material which showed that the petitioner has benefited from the transaction or had tried to give undue benefits to any third party or had taken any illegal gratification for the purpose.

6. In view of the present position of record, bail in anticipation of arrest, ad interim, granted to the petitioners by order dated 24-11-1996, are confirmed. N.H.Q./Z-28/L Anticipatory bail confirmed.