2010 PLP 1735 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition for leave to appeal arises out of the order dated 13.5-2010 passed by the Lahore High Court, Rawalpindi Bench. Relevant para therefrom is reproduced hereinbelow:-- "This is a second bail petition moved by the petitioner as his earlier bail petition was dismissed vide this Court's order dated 14-12-2009. No fresh ground has been urged as would persuade me to review my earlier order except that the petitioner is in jail since 17-10-2009 and that so far the trial against him has not commenced. However, the learned DPG states that the challan in the case has been submitted and the trial of the accused is likely to be commenced soon."

2. Petitioner is one of the accused vide F.I.R. No.24 dated 17th October, 2009 under sections 420/467/468/471/409/109, P.P.C. read with sections 5(2)/47, PCA registered at Police Station ACE, Rawalpindi on the statement of Anwaar Ahmad Khan, Secretary Health, Government of the Punjab. After his arrest the petitioner prayed for, release on bail by approaching the Court of Special Judge, Anti-Corruption but could not succeed as request so made by him was turned down on 16th November, 2009. Followed by the order of the High Court dated 14-12-2009 he made second attempt for his release by adopting the same course but could not make out a case as Special Judge declined to concede to his request on 25th March, 2010. Concluding para therefrom is reproduced hereinbelow:-- "As stated above, the petitioner's post bail petitions have already been dismissed not only by this Court but also by the honourable Lahore High Court, Rawalpindi Bench, Rawalpindi on merits while discussing all the grounds argued by the learned counsel for the petitioner today, so in my humble view, the ground taken by the learned counsel is not available to the petitioner before this court. Hence, the instant petition being devoid of any force is, therefore, dismissed." Against the above order for the second time bail application was repeated before the High Court, which too has been dismissed vide impugned judgment.

3. Learned counsel contended that the petitioner is innocent and is not involved in the commission of the offence as on account of omission or commission, if any can be attributed to him, he has not caused loss to the public exchequer. He being a petty employee in the hospital had no role to contribute in the commission of offence, therefore, he deserves to be released on bail.

4. Learned Additional Prosecutor-General assisted by the representative of Administration opposed the bail on the ground that sufficient material is available on record to involve him in the commission of offence.

5. It is important to note that in respect of DHQ Hospital, Rawalpindi an inquiry was initiated concerning alleged illegal appointment/regularization of the contract employees as Woman Medical Officer. The role of the petitioner as an Assistant Accounts Officer has also been highlighted which prima facie indicates his involvement in the commission of the offence, charged as per the contents of the F.I.R. noted above. Learned Additional Prosecutor General with the assistance of documents so procured by the investigating agency inter alia demonstrated that Dr. Bilal performed his duties on contract basis in the hospital w.e.f. 30th June, 2005 to 2007 when he resigned and joined Ministry of Health, Government of the Punjab. The petitioner prepared his pay-slip for the period from 1st May, 2008 to 1st July, 2009 and paid him Rs.324,

244. It is to be noted that after having left the contractual job with DHQ Hospital, he had no right to receive any emolument from the hospital but prima facie it was the petitioner who after preparing the pay-slip made the payment to him, knowing well that he is no more performing his duties in the hospital. This fact also finds mentioned in the F.I.R., which is based on inquiry report, according to which initially he refused to succumb the pressure of M.S. of the Hospital, who was persuading him to sign the pay-slip but subsequently he prepared the same in favour of Dr. Bilal. It may be observed at this stage that Dr. Bilal was arrested and statedly had refunded this amount and now has also been released on bail, therefore, principle of consistency has been pressed by the learned counsel for release of the petitioner on bail as well. The case being distinguishable on facts cannot be adhered to. In addition to it, under section 497 read with 498 the Superior Courts have right to form independent opinion in respect of involvement of an accused notwithstanding the fact that one of the co-accused has been released on bail. So in other words the provision relating to the grant of bail on the principle of consistency does not apply stricto senso when they are more than one, therefore, rule of consistency cannot be pressed into service as the case of the accused is not at par with that of his co-accused who had been admitted to bail. Reference in this behalf may be made to the case of Jehanzeb alias Bhobi v. State (2002 SCMR 1380). The action of the petitioner in preparing a document i.e. pay-slip on the basis of which salary was drawn by Dr. Bilal prima facie seems to be more serious than an action of a person who had received the money. Had the petitioner not issued pay-slips for the period noted above, there was no occasion of making the payment to him. Similarly it is pointed out that three brothers namely Allauddin, Salahuddin and Naseer-ud-Din having fictitious sanads/degrees were regularized by the authority and the petitioner had also been issuing their pay-slips.

6. It is further contended by the learned counsel for the petitioner that involvement in regularization of the three persons who otherwise were not allegedly qualified, cannot be attributed to the petitioner as he being an Assistant Account Officer has no authority to do so. This argument can the considered plausible but not at this stage when a tentative assessment of the facts and circumstances has to be undertaken for the purpose of disposal of the bail application where facts of the case are not to be appreciated in depth as it been held in the cases of Syed Maqbool Muhammad v. State (2005 SCMR 635) and Syed Lakhat-e-Hasnain v. State (2010 SCMR 855). But at the same time it is to be seen that all the three persons had obtained degrees in Medicines from outside the country and whenever pay-slip is issued; till the time when they were regularized, the Accounts Section, which is responsible for making the payment has also to be vigilant about their status because ultimately they have to obtain their salaries from the Section where the petitioner was reportedly dealing with such cases. Thus plea of innocence cannot be raised by him to make out a case for release on bail at this stage, as well.

7. Learned Additional Prosecutor General stated that the Staff Nurse Mst. Riffat Shaheen had worked for quite some time in this hospital and resigned from her such position on 29th May, 2009 and she was appointed Woman Medical Officer in Grade-17 on 30th May, 2009 and made herself entitled to get the salaries of new position assigned to her. The petitioner, who was working for the last five years in the organization had full knowledge about her service status but he knowing well that she cannot be allowed to work as Woman Medical Officer, started making payment of salary to her without any objection of whatever nature.

8. Learned Additional Prosecutor General wanted to point out some other examples in this behalf but on having satisfied that prima facie the petitioner is involved in the case the detailed discussion of the material other than what has been noted hereinabove, would not be in the interest of justice. However, learned counsel states that reference of the pay-slips, regularization of the so called doctors having fake degrees and appointment of Mst. Riffat Shaheen, Woman Medical Officer is not relevant because in the statement of Rehan Baqir, one of the prosecution witnesses, who handed over record of the case to the Anti-Corruption Establishment this fact was not mentioned. We need not to go into this aspect of the case because always it is not necessary to record the statement of the accused under section 161, Cr.P.C. However, at the bail stage as per the provision of section 497, Cr.P.C. the Court has to look into the material available on record to prima facie determine the involvement of an accused in the commission of offence or otherwise.

9. Though the High Court had not decided the case of the petitioner on merit yet in the interest of justice, learned counsel has been heard in support of the petition and the same is being disposed of on merits instead of entering into any technicality in respect of competency of second application for grant of bail, as it has been observed by the High Court. Thus, for the foregoing reasons, petition is dismissed and leave to appeal declined. N.H.Q./A-104/SC Bail refused.