2014 PLP 407 (MLD)

ABDUL SAMI KHAN, J.

Through this petition under section 498, Cr.P.C. the petitioner has sought pre-arrest bail in case F.I.R. No.167 of 2008 dated 5-11-2008 under sections 409, 161, P.P.C. read with section 5(2)47 PCA registered at Police Station ACE, Lahore.

2. Learned counsel for the petitioner contends that the petitioner is innocent; he has been falsely involved in this case by the complainant who himself is a Government Contractor and in order to get benefit from the petitioner who is a Government official he has got recorded this false and frivolous F.I.R.; there is a delay of eight months in the registration of F.I.R. which has not been explained by the complainant, which clearly shows that the F.I.R. has been got recorded after due deliberation and consultation; the provisions of sections 409/161 P.P.C. and section 5(2)47 PCA are absolutely not attracted in this case; the present petitioner has not misappropriated anything in this case; the petitioner has joined the inquiry and after thorough inquiry the concerned Deputy Director Anti-Corruption Establishment has recommended for the droppage of inquiry; later on Director Anti-Corruption conducted investigation and a cancellation report was prepared; there is a specified mechanism in Government department for issuing of tenders and the present petitioner has followed the said standard in this case; it is unbelievable that for the recovery of Rs.800000 a person paid Rs.2,50,000 as illegal gratification; the complainant has not moved an application to the ACE authorities to conduct raid upon the present petitioner when allegedly he has to receive the amount as alleged by the complainant in the F.I.R. as illegal gratification; the complainant is an influential person and due to his influence later on the inquiry was entrusted to another official of the Anti-Corruption Establishment without following the proper procedure who has found the present petitioner involved in this case without any cogent evidence; when the Director General Anti-Corruption Establishment gave his finding in the offence which falls under the Anti-Corruption Establishment Laws, a person aggrieved from the orders of Director General Anti-Corruption can file application for the redressal of his grievance to the Chief Secretary or Chief Minister of the Province but in this case this procedure has not been followed; the petitioner is a respectable Government official and there is no chance of his abscondence; he has already joined the investigation and nothing is to be recovered from him; if arrested his whole career would be spoiled. Learned counsel for the petitioner has relied upon 2007 YLR 345, 2006 YLR 1567, 2006 YLR 164, 2012 SCMR 1273 and 2012 SCMR 1137.

3. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant, after going through the record, has vehemently opposed this bail petition on the grounds that the petitioner is named in the F.I.R. and he has received Rs.2,50,000 as illegal gratification in the presence of witnesses and the articles misappropriated by the petitioner are yet to be recovered; in the final investigation the present petitioner has been found fully involved by the investigating officer; in the first investigation the complainant could not appear before the investigating officer as the complainant had gone to perform Umrah and was not available in the country; there is sufficient incriminating material against the present petitioner on the file of this case; according to subsection (6) of section 5 of Pakistan Criminal Law Amendment Act 1958, the Special Judge is competent to change the investigation. Learned counsel for the complainant has relied upon 1998 MLD 1523.

4. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor General and the learned counsel for the complainant and also gone through the record with their able assistance. It has been noticed by this Court that there is a delay of eight months in the registration of F.I.R. which has not been explained by the complainant; even otherwise there is no allegation against the present petitioner that he has received the goods from the complainant in his private capacity for his personal use; a tender was issued in this regard after fulfilling all the legal requirements; it is unbelievable that for the recovery of Rs.800000 a person paid Rs.2,50,000 as an illegal gratification; during the investigation upto the level of Director General Anti-Corruption Establishment the present petitioner was not found involved by the Investigating Officer but when the cancellation report was placed before the learned Special Judge Anti-Corruption the same was disagreed by the learned Special Judge and the learned Special Judge Anti-Corruption also changed the investigation although he is not competent to do so; under the Anti-Corruption Laws if anybody is aggrieved from the decision of Director General Anti-Corruption the competent forum is Chief Secretary or Chief Minister of the Province for the redressal of his grievance; admittedly no raid was conducted in this case neither the complainant had applied for the same; it is not mentioned by the complainant that currency note were marked; the petitioner is a Government official and if arrested his whole career would be spoiled; the case-law relied upon by the learned counsel for the complainant is not applicable to the facts and circumstances of this case; the petitioner has already joined the investigation; no useful purpose would be served by sending him behind the bars at this stage as the prosecution will have sufficient opportunity to prove the guilt of the present petitioner during trial.

5. For what has been discussed above, the petitioner has made out his case for grant of bail before arrest. Resultantly, the ad interim pre-arrest bail already granted to the petitioner vide this Court's order dated 24-1-2013 is hereby confirmed subject to his furnishing bail bond in the sum of Rs.100,000 (Rupees one lac only) with two sureties in the like amount to the satisfaction of learned Trial Court/Area Magistrate.

6. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. MWA/N-21/L Bail confirmed.