2000 P Cr (PLP)

Petitioner, through this application seeks bail in a case registered vide F.I.R. No.1/N of 1994 on 20-1-1994 at Thana Dera Murad Jamali, Anti-Corruption Establishment, Balochistan, under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 at the instance of Muhammad Ali, Under Secretary-1, S&GAD, Civil Secretariat, Quetta.

2. It is the case of the prosecution that respecting construction of 38 K.M. roads in Jaffarabad District an inquiry was conducted. Physical inspection and measurements were carried out. It was revealed that eight contractors had been paid a sum of Rs.14.455 Million in excess of their work done. It has also been stated that the payments had been released to the Contractors in the absence of bills and record entries made in the measurement books. It is stated that this was indicated by the Divisional Accountant of B&R Division, Dera Allah Yar.

3. The allegation against the present petitioner is that he being co signatory had issued cheques and made excess payments to the tune of Rs.14.455 Million to the Contractors in the absence of bills and M. B and with collaboration of co-accused Ghulam Nabi Mengal, XEN caused financial loss to the Government to the tune of Rs.14.455 Million.

4. It is stated that a departmental inquiry was also conducted against the petitioner, but he was not found guilty on any account as a result of inquiry conducted by the Inquiry Officer S.M. Ziauddin, Accounts Officer. The case is stated to had been dropped from the Anti-Corruption Establishment on 18th March, 1996 by the P.A.C.C. It is stated that the same was restored and after obtaining permission, arrested. the petitioner. Bail Application on behalf of the petitioner/accused was moved before the learned Special Judge Anti-Corruption, Balochistan, Quetta, but the petitioner was refused bail by the learned Special Judge vide order dated 3-2 2000. Hence this petition.

5. I have heard Syed Ayaz Zahoor, Advocate learned counsel for the petitioner and Mr. Noor Muhammad Achakzai, learned Additional Advocate General for State.

6. Learned counsel for the petitioner has contended that the petitioner has falsely been implicated with the commission of alleged offence. He has contended that the contents of the F.I.R. do not constitute offence under section 409, P.P.C. as mentioned therein and in the absence of any allegation or evidence of entrustment and mere excess payment to the Contractors by co-accused does not establish any case against the petitioner. He has further argued that the petitioner being Divisional Accountant had been endorsing the classification on the reverse of the cheques under .his signature as according to the, instructions of the Finance Department, no cheque was to be issued unless it clearly classified as development and non-development Expenditure. It is stated that the prosecution has not been able to collect any evidence that the petitioner, with connivance of co-accused has mis appropriated the said amount. Learned counsel has submitted that Contractors have already been granted bail. Therefore, the petitioner on the principle of consistency is also entitled for the grant of bail. He has further contended that the case of prosecution rests on the documentary evidence and involvement of the petitioner is yet to be determined and it is a case of further inquiry' as per provisions contained in section. 497 (2) of the Cr.P.C. Syed Ayaz Zahoor, Learned Counsel for the petitioner, cited the following case law:

. (i) 1995 MLD 766, (ii) 1994 SCMR 393, (iii) 1995 SCMR 170, (iv) 1996 SCMR 1132, (v) 1999 MLD 681 and (vi) 1976 SCMR

178. Mr. Noor Muhammad Achakzai, learned Additional-Advocate General appearing on behalf of the State, vehemently opposed the grant of bail to the petitioner and submitted that the prosecution has been succeeded to secure 44 Cheques out of 55 cheques, which had been issued to the Contractors and remaining 11 cheques are yet to be secured. He has submitted that co-accused Ghulam Nabi Mengal has also been arrested and interim challan in respect of petitioner has been prepared. .

8. I have given ample consideration to the arguments advanced by the learned counsel for petitioner. The law declared in cases cited by learned counsel for the petitioner is to the effect that if the case is entirely dependent upon documentary evidence which is in possession of the. prosecution and no possibility of tempering with such evidence exists, accused being Government servants and who is nor required for further .investigation and trial of accused was likely to take sufficient time, the accused on the principle of consistency is entitled for the grant of bail .and that in cases of further inquiry the accused are entitled to the grant of bail.

9. There is no cavil with the propositions of law referred to above, therefore, it is not necessary to discuss the said cases in detail suffice it to say that each bail` application has to be decided on its own merits, of course keeping in view the principles of law as laid down in the judgments. In the instant case section 409, P.P.C. has been applied in the F.I.R. which- falls within the ambit of prohibitory clause. Co-accused Ghulam Nabi Mengal has also been arrested and besides, statements of P.W. Muhammad Ibrahim Brahvi, Arshed Saeed, Mir Ahmed, Muhammad Ishaque and Muhammad Hadi, has also fully implicated the petitioner with the commission of alleged offence and obtaining monetary gain particularly from Nazir Ahmed Bangulzai, Contractor which if taken into consideration alongwith the probabilities does prima facie show that there are reasonable grounds to believe that the petitioner is guilty of the offence alleged to have been committed by him. The cases of corruption cannot be taken lightly and cannot be allowed to evade the punishment merely on technicalities. The novel procedure adopted by the Anti-Corruption Establishment during investigation and dropping of the case after registration hardly needs any further comments as the same may prejudice the trial. Eleven cheques are yet to be secured by the prosecution and in view of evidence and disclosure made by the co-accused the probability of tampering evidence cannot be overruled in the circumstances of present case and in each case it. cannot be said that merely because the allegations levelled against the accused persons are still under investigation, his case falls within the proviso of section 497, Cr.P.C. The rule of consistency is hardly applicable as Contractor Nazir Ahmed had been allowed bail by the learned Special Judge, Anti-Corruption Balochistan on 30-7-1995 before restoration of the case by the P.A.C.C. and collecting of remaining evidence. From the tentative assessment of the material placed by the prosecution, it can be concluded that there are reasonable grounds to believe that the petitioner has committed the offence alleged against him and gained monetary benefit and there is hardly any substance in this application which entitles the petitioner to be enlarged on bail.

10. The Honourable Supreme Court in a case of Imtiaz Ahmed v. State reported in PLD 1997 SC 545 have refused bail in a case which was not coming under the prohibitory clause of section 497(1), Cr.P.C. and have made the following observations:

"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 it connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow' bail in cases nor falling under prohibitory clause of section 497, Cr.P.C. in the absence of an exceptional circumstances 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. The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Courts approach should be reformation oriented with the desire to suppress the above mischieves. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right, guarantees life and liberty of every person. Life, inter alia includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right."

11. The observations made by the Honourable Lahore High Court in a judgment reported in 1995 PCr.LJ 430 Lahore are noteworthy, the relevant para. of the judgment is reproduced below for the sake of facility:-- "Looked the case from another angle judicial notice can be taken of the events that in the society tendency to grab public property and squandering of public funds has increased to a cancerous maganiture. It is high time, therefore, that the grabbers of public property and squanderers of public funds are dealt with an iron hand. It is hence duty of all the organs of the State including the judiciary that while dealing with such-like cases particularly in exercise of discretionary jurisdiction, the volume and extent of injury to the society both materially and to the moral fibre thereof, is also kept in view. A person who grabs the ,public property and squanders public funds commits a very heinous crime which is not less than an offence committed by a murderer who murders an individual whereas, a grabber and the squanderer kills the whole society. Consequently, all the petitioners have not been able to make out a case for grant of bail to them as of right or by exercise of discretion in their favour and as there are reasonable grounds to believe that all the petitioners are guilty of offences alleged to have been committed by them, a majority whereof fall within the prohibitory clause of section 497, Cr.P.C, hence they are not entitled to the grant of concession of bail in this case, at this stage. "

12. Having regard to the abovementioned factors, the petitioner is not entitled to the grant of concession of bail at this stage and the learned Special Judge has exercised discretion properly in refusing bail to the present petitioner. The observations made in this order are without prejudice to the case of either party at trial. The petition is accordingly dismissed. N.H.Q./24/Q Bail, refused.