1987 PLP 3192 (MLD)

13. As the receipts/income of Zila Council had considerably decreased obviously due to non-payment of full lease money by Mimraiz Khan, contractor, therefore, petitioner submitted revised budget for approval of the House by curtailing certain development projects. It was approved on 20-4-1987 in a special meeting of Zila Council but some councillors protested to the Commissioner that it was passed by a house which lacked quorum. The Commissioner, therefore, suspended proceedings of 20-4-1987, however, on 26-5-1987 the same budget was approved and the decreased in the income was specially noticed and it was resolved that in view of the financial position presently obtaining the development works should be carried out. It was in this background that about 8 councillors had approached the Commissioner and complained to him that the petitioner had illegally allowed 50% rebate to the contractor which resulted in loss of Rs. 2 crore to the Zila Council. These councillors' threatened the administration that if a case against petitioner was not registered they would submit their resignations and go on hunger strike in front of the office of Chief Minister, Punjab. Consequently, .the instant case was registered on 26-5-1987.

14. I have heard learned counsel for the petitioner, learned Additional Advocate-General and also Mr. Wazir Ali Bhatti Advocate (complainant) and perused the record.

15. Realising that since no property/amount whatever had been entrusted to the petitioner, therefore, it could not be said that petitioner had criminally misappropriated it, learned Additional Advocate-General conceded and rightly so, that no offence under section 409, PPC or abetment thereof had been committed by the petitioner, but referring to section 5(1) (d) of the Prevention of Corruption Act, 1947, which reads as under,--

5. Criminal misconduct.--(1) A public servant is said to commit the offence of criminal misconduct, (a) to (c) . .................... (d) If he, by corrupt and illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or (e) **** Learned Additional Advocate-General emphasized that the petitioner by his following acts of commissions and omissions had obtained 'pecuniary advantage" for the contractor by abusing his official position and caused corresponding wrongful loss to Zila Council:-- (i) The petitioner had no authority under the law to grant rebate to the contractor yet he "allowed" the contractor on 6-10-1986 to deposit 40% amount of the monthly instalment instead of depositing the full amount; (ii) the petitioner got the revised budget approved in a specially convened meeting on 10-4-1987 which lacked quorum, in a bid to conceal his illegal act of allowing the contractor to pay half the amount of monthly instalment; and (iii) the petitioner according to terms of the agreement was empowered to rescind the contract on contractor's failure to deposit full amount of monthly instalment within prescribed time but the petitioner did not do so, which fact speaks him mala fide intention. All these circumstances show that the petitioner by abusing us official position had passed order dated 6-10-1986 in favour of 5e contractor and thus granted him undue "pecuniary advantage" and on the other hand caused corresponding loss to the Zila Council, hence he is guilty of "criminal misconduct" which constitutes an offence punishable under section 5 (1)(d) of the Prevention of Corruption Act, 1947. He next submitted that as huge monetary loss has been caused to the Zila Council, therefore, the petitioner is not entitled to extraordinary concession of pre-arrest bail.

16. Mr. Wazir Ali Bhatti Advocate, Vice-Chairman of Zila Council, added that the petitioner and, his son have amassed wealth and purchased number of properties with ill-gotten money and, therefore, he should not be allowed bail as it would stifle the investigation and also the recovery of misappropriated money would not be possible.

17. Replying, learned counsel for the petitioner submitted that,-- (i) the petitioner did not have any power to grant rebate nor did he do so. He only allowed the contractor to deposit half instalment temporarily as prayed for by him and sent his applications seeking rebate in lease-money, to the Commissioner for consideration and decision which is the competent authority as the contractor had clearly assured in his application that he would pay up the balance when his application would be decided and that the petitioner had apprised the Commissioner about it, to which neither the Commissioner nor the Government had taken any exception; (ii) the petitioner's bona fides are further proved as he issued reminders on 3-11-1986 and 21-11-1986 to the authorities pressing for early decision but the Commissioner persistently declined to act as arbitrator in clear violation of the terms of agreement and had instead repeatedly asked the Government to appoint somebody else to act as arbitrator; (iii) it was due to inaction on the part of the Commissioner and the Government to take a prompt decision in the matter that the contractor found opportunity to approach the civil Court and obtain stay order against payment of full lease money to the Zila Council, therefore, full amount of monthly instalment was not paid by the contractor under Court's stay order; (iv) The Zila Council in its special meeting dated 16-511987 took note of this litigation and in view of income having decreased had approved the revised budget in its original form (as was tabled and approved earlier on 20-4-1987) in the presence of complainants (members of the opposite group) and that no mala fides were imputed to the petitioner in that meeting; (v) no tangible evidence showing that petitioner had any connection whatsoever or a secret deal with the contractor has been collected so far to prove existent of mens rea on his part; (vi) the arbitrator has filed his award holding the contractor as entitled to about 50$ rebate in the lease money but the petitioner has filed objections against it and also filed civil revision in the High Court praying for vacation of stay order issued in favour of the contractor but that having failed the petitioner could not in the presence of stay order proceed for cancelling the contract or recovering the outstanding lease money from the contractor; (vii) the petitioner has joined investigation and produced all relevant record required by the police for investigation; (viii) there being no misappropriation by the petitioner as conceded by learned Additional Advocate-General, nothing is to be recovered from him; and lastly (ix) the contractor applied for rebate not due to secret arrangement with the petitioner. He did so following previous practice. In previous two years also the export tax contractor was allowed about 50$ rebate amounting to nearly 1.50 crore in each case and the complainants herein were a party to grant of that concession. (x) there is grouping among the members of Zila Council and those belonging to opposite group (complainants) are beat upon getting the petitioner arrested for ulterior motives, i.e. to humiliate and disgrace him and further by involving him in false cases like this, they want to get him disqualified from contesting the coming local bodies election, hence the petitioner who is well-reputed, aged and ailing person, in the aforementioned circumstances, is entitled to the grant of pre-arrest bail.

18. I have carefully considered the contention of learned counsel it the parties, and prima facie I find as under:-- (i) the petitioner forwarded the contractor's' application dated 1-10-1986, seeking rebate in lease money within a fortnight to the Commissioner for consideration and decision in whom the power to accept or reject the request of the contractor vested. The petitioner allowed deposit of half amount of monthly instalment on 6-10-1986 subject to Commissioner's decision. He reminded the Commissioner and the Government time and again to immediately decide contractor's application; and (ii) Civil Court has taken cognizance of the dispute and the arbitrator appointed by it has filed his award so the questions whether the contractor is entitled to any rebate or not; and if entitled to what extent, are sub-judice and the petitioner is opposing the contractor before the relevant forums; and (iii) permission for depositing half the amount of instalment granted to the contractor by the petitioner on 6-10-1986 received tacit of approval of the competent authority "Commissioner". It is essential to prove mans-rea on the part of accused to bring home charge of "criminal misconduct" successfully. It is well-settled that existence of mens rea cannot be automatically presumed merely because an illegal order has been passed by a public functionary, very strong evidence is needed to prove unfairness and want of good faith on the part of the accused. As the matter is sub-judice therefore it cannot be said at this stage and in face of the material collected by Investigating Agency so far that the contractor had obtained any "pecuniary advantage" muchless due to "criminal misconduct" of the petitioner. Petitioner's grievance that his opponents have brought this case against him with ulterior motive to get him humiliated and also get him disqualified from contesting coming election of Local Bodies, is not wholly without basis Political difference between the complainant and petitioner are too obvious to be mentioned. DSP who is investigating the case stated that the petitioner has joined the investigation and also produced before him the record he needed for investigation, therefore, the investigation would not be hampered if this application is allowed.

19. For what has gone above, I find it a fit case for grant of pre-arrest bail to the petitioner: Consequently Interim bail granted to him earlier is hereby confirmed. S.A./K-56/L Bail confirmed.