P L D 2004 Karachi 152 (PLP)

"It may be observed that a Court, while considering the merits of a bail application, is required to take a decision, on the basis of the material available at the time on record, whether there are reasonable grounds to believe that the accused is involved in the crime, and should avoid taking the crucial decision merely on the basis of conflicting investigation reports and entry of the name of the accused in Column No.2 of the challan, which may be relevant but not the sole criteria for grant of bail."

8. Keeping in view the above dictum laid down by Supreme Court of Pakistan, we have given due consideration arguments of the parties' advocates and perused the record of very carefully.

9. It is an admitted position that before joining the service, applicant, his parents and his brothers had no assets or properties appears that they belonged to a poor family. The applicant was inducted in Custom Department as U.D.C., in BPS‑7 in the year 1981. He continued to remain on that post up to January, 1985. His monthly salary was Rs.2,800 only. During the said period the applicant could not acquire any property. Apparently, he had no sufficient source income to purchase movable or immovable properties. When the applicant became Preventive Officer in BPS‑14, having salary of Rs.6,500 per month within two years, viz. in the year 1987, he acquired a Flat No.N‑9, Five Star Luxury Apartment, Block‑14, Gulshsan‑e‑Iqbal, Karachi for an amount of Rs.4,50,000 in his name and purchased 11 Kanals and 4 Marlas Plot in village Maraka, Multan Road, Lahore for an amount of Rs.5,00,000 in the name of his wife. Subsequently three more properties viz. Flats and bungalows were purchased at Karachi in the year 1990, 1994 and 1997. The record reveals that the applicant, his wife and. his son Master Sajeel Raza were operating various bank accounts in Pakistani and Foreign Currency Accounts in which a large amount was transacted in between the year 1981 to 2000. From the cursory glance, on the properties acquired by the applicant and the salary of the applicant which was the only source of his income and after deducting the house‑hold expenses, education expenses of the children and the expenses of the applicant on foreign visits, it appears that the said properties are disproportionate to the known sources of the income of the applicant which were known to the prosecution. Apparently there is prima facie case against the applicant.

10. However, during the course of investigations the applicant has shown his sources of income by alleging that the properties purchased in the year 1987 were purchased from the prizes which he received on Prize Bonds and other properties were purchased from the remittance which were sent by his brothers from U.S.A and profits on the amounts which he had invested in the business of M/s. Raza International and Messrs Auto Flash of Sayed Nadeem Ahmed who was doing the business of sale and purchase of old and new cars and Government Contractor.

11. As regards the prizes of Prize Bonds, it will be seen that in just within two years the prizes of Prize Bonds were given. In this connection two officials of State Bank of Pakistan viz. Salahuddin and Muhammad Islam were examined by the Investigating Officer. They deposed that generally some persons purchase the winning Prize Bonds from their owners to make their black money into white. This practice is in vogue in this country and this is being done by the persons who acquire black money so that the same can be turned into white. However, no definite finding can be given at this stage as it might prejudice the case of the parties. However it is pointed out that after 1987, not a single prize on the Prize Bonds was given. Why it was not given and why it was given earlier? These questions are to be answered by the trial Court.

12. The second source of income which the applicant claims is remittance from abroad sent by his two brothers. In this connection the earlier Investigating Officer Yar Muhammad found from the record that some remittances were sent from U.S.A. by the brothers of the applicant but no figure of the amount was given by him. Subsequently, the matter was re‑investigated by Nafees Ahmed Siddiqui, Inspector, F.I.A. who found that a remittance of U.S. $20,766 was sent by the brothers of the applicant from U.S.A. but he also found remittance of U.S. $21,466 sent from unknown sources to the applicant. Thus the remittance sent by some unknown persons are to be established through one way or the other by the applicant and the prosecution, therefore, no definite finding can be given at this stage. However, it is open secret that system of Hawala and Hundi are in vogue in Pakistan, through which money in Pak currency is paid in Pakistan and its equivalent amount, in foreign currency is received abroad and again the said amount is sent back to Pakistan as remittances. This is being done to convert black money into white. These points are to be examined by the trial Court.

13. As regards the profit received from Messrs Raza International and Messrs Auto Flash, it is pointed out that 50% share of Raza International is owned by the wife of the applicant. Sayed Nadim Rahim of Messrs Auto flash has been examined who has stated that he used to make investment in the business, for which, the amounts were provided by the applicant.

14. From the above position it is clear that the applicant was providing money in the business of Messrs Auto Flash and Messrs Raza International. The applicant being a public servant is debarred from entering into any business as it is prohibited under Rule 16 of West Pakistan Government Servants (Conduct) Rules, 1966. Not only that, if a public servant indulges in such type of business or trade then he is committing an offence punishable under section 168, P.P.C. Whatever the profit received by the applicant from the said trade and business, is received by him, after committing the offence punishable under section 168, P.P.C. As such, if any income is received by committing an offence, then apparently it cannot be termed as legitimate source of income. For example, if a person says that be acquired the property from the income received from smuggling then the said income cannot be termed as legal income, as, it was acquired after committing the offence of smuggling. The above tactics and other tactics are being adopted by various persons to convert their black money into white.

15. However, these points are to be thrashed out by the trial Court at the time of evidence. No definite findings can be given at this stage as the Court is permitted to assess the evidence tentatively and give its tentative finding.

16. The Hon'ble Supreme Court of Pakistan while dealing with similar situation, at bail stage in a case of Ghulam Ali v. State reported in 2003 SCMR 597 and at page 600, has observed as under:-- "The question whether the properties owned by the petitioner were purchased by the petitioner before entering into public office or after expiry of the tenure of the said office and the properties in the name of his father, brothers and other relatives were Benami or they were owner of said properties in their own right need not to be gone into by us at this stage as the expression of an opinion in any manner is not proper so that no party should be prejudiced at the trial."

17. It is pertinent to point out, that white collar crime is committed by highly educated and qualified persons, who adopt various novel modes to cover their crime. It is extremely difficult to unearth the said crime and with great difficulty the Investigating Officer could collect some evidence which can throw light upon the involvement of accused. Thus the criteria which is required in ordinary crime cannot be applied to this type of crime. A special consideration has to be given. The legislators also found that ordinary laws were not enough to combat the situation, therefore, special law has been enacted to deal with the situation.

18. In the case of Sayed Samir Rauf v. State being Criminal Petition for Leave to Appeal No. 175 of 2002 the Hon'ble Supreme Court has observed as under:-- "In this regard it would be appropriate to reproduce the observation made by this Court in the case reported as Imtiaz Ahmed and another v. The State PLD 1997 SC 545. `

7. I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. in the absence of an exceptional circumstance may be followed, but in the latter category, the Courts should be strict 'in exercise of discretion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated falling within an exceptional circumstance of the nature warranting refusal of bail even where maximum sentence is less than 10 years' R.I. for the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved'." It would also be appropriate to reproduce the observation of this Court in the case of Zeeshan Kazmi v. The State PLD 1997 SC 267. "7. ... The crime rate has increased manifold. The criminal instinct/propensity has penetrated in all walks of life. Some of the personnel of the State functionaries/agencies which are entrusted with the duty to protect the life, property and honour of citizens, either themselves actively participate in the commission of the heinous crime or they provide protective umbrella to the criminals. Their credibility has been denuded to the extent that the victim of the crime do not approach them for their help or protection which they are otherwise entitled to as a matter of right under the Constitution."

19. After considering the material available on the record, we are of the considered view that the findings one way or the other if given on the above points will prejudice the case of the parties but from the tentative assessment of the evidence we are of the view that a prima facie case has been made out against the applicant and there are reasonable grounds for believing that he is involved in the case, therefore, he is not entitled fore the concession of bail. Hence the application is dismissed.

20. Needless to say that the learned trial Court Judge shall not be influenced by the tentative observations/findings reached in this matter. N.H.Q./S‑4/K Bail refused.