RAHMAT HUSSAIN JAFFERI, J.---The facts giving rise to the Bail Application are that the Chairman, N.A.B. Had referred the matter to the F.I.A Authorities for holding an investigation against the applicant in respect of allegation that he was involved in corruption and corrupt partices and that his life style was much beyond his visible and legitimate sources of income. The investigation was entrusted to Yar Muhammad Mughal, Sub-Inspector, F.I.A. Saddar, Karachi. During the investigation he collected the assets of movable and immovable properties owned by the applicant and his wife which he acquired after he became public servant and bank accounts in his name, in the name of his wife and dependants operating in various banks of Karachi in respect of Pak currency and foreign currency accounts. The Investigating Officer also collected the various sources of income of the applicant and his wife. After examining the material collected by him, he formed an opinion that the oral and documentary evidence collected so far was not sufficient, which can be taken to the Court of law for prosecution purpose. However, he suggested that the matter may be vetted from the legal department of N.A.B., Karachi before taking final decision.
2. The matter was referred to Chairman, N.A.B. Who did not agree with the finding of the Investigating Officer, Sub-Inspector Yar Muhammad, therefore, the matter was again referred to F.I.A. Authorities for further investigation. The matter was entrusted to Senior F.I.A. Officer viz. Nafees Ahmed Siddiqi, Inspect& F.I.A. Karachi. The matter was investigated by him. During his investigation, he collected the assets of the applicant, which are same as collected by Sub-Inspector Yar Muhammad He also collected the various sources of income of the applicant, but there is difference of opinion between both the Investigating Officers about the said sources, therefore, he gave a different opinion than that of his predecessor by holding that sufficient evidence was available against the applicant for prosecution. The matter was referred to the Chairman, N.A.B., who after examining all the material placed before him, decided to file a reference, as required under section 18 (g) of the N.A.B. Ordinance, 1999. Consequently, the reference was filed against the applicant. This bail application was filed when the matter was being further investigated by Nafees Ahmed Siddiqi, Inspector, F.I.A. During the proceedings of the present application the reference and the investigation report of Nafees Ahmed Siddiqi have also been presented before the Court for perusal.
3. We have heard the Advocate for the applicant, DGP and perused the record. The learned Advocate for applicant has mainly argued that the Investigating Officer S.-I. Yar Muhammad found the applicant innocent, therefore, the applicant is entitled for bail, irrespective of the fact, that in the subsequent investigation, the applicant was found to be involved in the case. He has further argued that as there is conflict of opinion between the two Investigating Officers, therefore, the case has become doubtful, hence, the applicant is entitled for benefit of doubt, which may be extended to him by releasing the applicant on bail. He has relied upon Muhammad Rafiq v. Abdur Rehman (1979 SCM R 377) and Karam Din v. Muhammad Sharif (1975 SCM R 230), on the proposition that bail can be granted if there is difference of opinion between two Investigating Officers. He has further argued that the applicant has reasonably explained the legitimate source of income from which he acquired the movable and immovable properties and operated Bank Accounts.
4. On the other hand the learned DPG has stated that the investigation conducted by Sub- Inspector Yar Muhammad was not properly conducted as it was collusive investigation with the applicant; that the Chairman, N.A.B. Did not agree with the said investigation report, therefore, the same was transferred to Inspector Nafees Ahmed Siddiqi who conducted the investigation and found the applicant involved in the case; that the Chirman, N.A.B. After considering the material decided to file the reference under section 16(g) of the N.A.B. Ordinance, 1999 and that from the reference the case is made out against the applicant. He has further argued that the opinion of Investigating Officer is not binding upon the Court; that the Court may examine the entire record and form its own opinion. He has relied upon Imtiaz Ahmed and another v. The State (PLD 1997 SC 545) and Criminal Petition for Leave to Appeal No,175 of 2002, Sayed Samir Rauf v. The State, decided on 8th July, 2002. He has further argued that the explanation furnished by the accused about his source of income from which the properties were acquired are fictitious and created by the applicant so as to cover his misdeeds and to make the money from black to white. He has further argued that the applicant belongs to a poor family who had no assets or properties when he joined the service as U.D.C., that the applicant, his parents and his brothers had also no assets or properties; that during the period of service when the applicant was U.D.C., he was not able to acquire any property but when he became Preventive Officer which is a very lucrative post the properties were purchased by him which were beyond the source of his income viz. Salary, as such, the applicant has committed the offence. He has further argued that giving findings one way or the other about the other sources of income, except salary, amounts to deeper appreciation of evidence, which is not permissible at this stage, as the parties would be prejudiced because of the said findings, therefore, he has argued that the applicant is not entitled to the concession of bail.
5. ' We have given due consideration to the arguments and examined law relied upon by the learned Advocates. As regards the quoted by the learned advocate for the applicant, it was in the said Authorities, that if there is difference of opinion investigation agencies coupled with other circumstances, then the bail can be granted. There are other authorities of Honourable Supreme Court of Pakistan giving different opinion.
6. A point as to whether the finding of Investigating Officer that the accused is innocent or the difference in the investigation of the various agencies about the guilt or innocence of the accused can be made a basis for granting of bail, came before the Honourable Supreme Court of Pakistan in a case Liaqat Ali v. The State (PLD 1994 SC 172). On the above point, various authorities of the Hon'ble Supreme Court of Pakistan were examined and considered, giving opinion for and against in respect of above point, including the Authorities relied upon by the learned Advocate for the applicant and at page 78 their Lordships have observed as under:-- "Considering the observations made and the rule laid down by the aforestated judgments, it is now well-settled that the opinion of the Investigating Officer is not binding upon the Court. Every Court can have its own, opinion and may after examining the opinion of the Investigating Officer come to a different conclusion. The opinion of Investigating Officer holding an accused innocent cannot be made the only basis for granting bail. Although due weight is given to such opinion, but the Court is empowered to examine the material which has been made basis for forming such an opinion by the Investigating Officer. If the opinion is based on inadmissible and irrelevant evidence, it will not carry any weight at all."
7. In an another authority of Hon'ble Supreme Court of Pakistan, delivered in a case, Muhammad Din. The State (1998 SCM R 1), similar view was taken. In that case, 3 Investigating Officers found the accused innocent but a 4th Investigating Officer found the accused involved in the case. In such situation the bail application was moved before the trial Court which was dismissed. The order was challenged before the High Court, which also met with the same result. The matter went to the Hon'ble Supreme Court and the order passed by the High Court was maintained. At page 5 of the said judgment, it has been observed as under:-- "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 the Hon'ble Supreme Court of Pakistan, we have given due consideration to the arguments of the parties' advocates and perused the record of this case very carefully.
9. It is an admitted position that before joining the service, the applicant, his parents and his brothers had no assets or properties. It 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 of 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.
1. As regards the prizes of Prize Bonds, it will be seen that in just two years the prizes of Prize Bonds were given. In this connection 'ials of State Bank of Pakistan viz. Salahuddin and Muhammad examined by the Investigating Officer. They deposed that ne 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 he 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 SCM R 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 discre tion 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 wa jcs 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 assessm ent 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 for 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.