1. ' MUHAMMAD AFZAL SOOMRO, J.---By this common order I intend to dispose of these three applications for bail in anticipation, bearing Cr. B.As. Nos.964, 969 and 973 of 2004, moved by applicants Mansoor Akbar, Iqbal Akbar, Haji Shah Jehan and Abdul Rasheed Shaikh, respectively, in a case bearing F.I.R. No.18 of 2004, registered under sections 161/420/468/471/477-A/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act 1947 (Act-II of 1947) at Police Station ACE Karachi.
2. ' The F.I.R., registered against the applicants, reads as follows:-- "This case is registered with the approval of competent Authority as a result of an open enquiry into the illegal allotment of shops in New Sabzi Mandi Project, Super Highway, Karachi w.e.f. 30th June to 30 September, 2004, which was initiated on source report containing allegations published in local press, the contents of allegations were enquired into discreetly and then through open enquiry after taking permission of competent Authority. So far it has been established that there is prima facie evidence to show that:--
(a) The officers/officials of Market Committee, New Sabzi Mandi, Karachi are involved in mega corruption and misuse of powers into the affairs of New Sabzi Mandi, Karachi.
(b) The management of Market Committee is not entitled to issue any allotment order ,in connection with shops/plots in New Sabzi Mandi due to ban imposed by Government of Sindh.
3. More than 325 files have been scrutinized and found in contravention to Government policy and procedure.
(c) The officers/officials of the Market Committee, Karachi entered into the process of allotment in violation of Government policies as laid down by Ministry of Food and Agriculture, Government of Sindh, the policy guideline issued by Honourable High Court of Sindh, Honourable Ombudsman, Sindh and Standing Committee.
(d) A new serial of 97 challans/ allotments of shops/open spaces bearings Nos.1 of 2004 to 97 of 2004 have been created in contravention to the above-said policies.
(e) The allotment has been done without approval of the master plan (layout plan).
(t) More than thousand challans have been issued in the various heads with the intention to provide the payees with a legal excuse to be claimant in future.
(g) The officers/officials of Market Committee have illegally allotted about thirty (30) shops/spaces in the names of employees of Market Committee.
4. ' From the above facts and circumstances, a prima facie case of corruption and corrupt practices has been established against the following accused' persons, who caused loss to Government exchequer to the tune of millions of rupees, hence this F.I.R. Under sections 161/420/ 468/471/477- A/34, P.P.C. Read with section 5(2) of Act II of 1947:--
(i) Muhammad Akbar Zardari, Administrator (BPS-17), Market Committee, Karachi.
(ii) Abdul Rasheed Shaikh, Secretary (BPS-17), Market Committee, Karachi.
(iii) Muhammad Ayaz Khan, Accounts Officer (BPS-17), Market Committee, Karachi.
(iv) Khadim Hussain, Accountant (BPS-15), -Market Committee, Karachi.
(v) Aziz-ur-Rehman, Office Superin- tendent (BPS-14), Market Committee, Karachi.
(vi) Ghulam Muhammad, Inspector (BPS-15), Market Committee, Karachi.
(vii) Mansoor Akbar son of Jalal Akbar (private person/beneficiary) illegal allottee of Plot No.21/L, Block-A2, Sabzi Mandi, Karachi.
(viii) Iqbal Akbar son Jalal Akbar (private person/beneficiary) illegal allottee of Plot No.21/R, Block- A2, Sabzi Mandi, Karachi.
(ix) Haji Shah Jehan son of Abdul Rasheed (private person/ beneficiary) illegal allottee of Shops Nos.25 and 26, Block DA-I, Sabzi Mandi, Karachi.
(x) And all others (illegal allottees/ beneficiaries) of above plots.
5. ' The investigation followed and out of nine nominated accused persons, three private persons/beneficiaries namely Haji Shah Jehan, Mansoor Akbar and Iqbal Akbar and one officer/official namely Abdul Rasheed Shaikh, Secretary, Market Committee, Karachi, have approached this Court for pre-arrest bail directly. However, they were granted interim pre-arrest bail vide orders passed on 12th and 13th days of October, 2004, respectively, in above-mentioned bail applications and now these matters have been placed for confirmation of said interim pre- arrest bail or otherwise.
6. ' I have heard Messrs Khawaja Shamsul Islam, Fareed Ahmed Dayo and Syed Ahmed Ali Shah Advocates, learned counsel appearing on behalf of all the applicants, and Mr. Fazlur Rehman Awan, learned counsel appearing on behalf of the State and also perused the record.
7. ' It has been contended by Mr. Khawaja Shamsul Islam, learned counsel for the applicants in Cr. B.A.
8. No.964 of 2004 that the applicants are innocent and have, falsely, been implicated in this case. It has, further, been contended by the learned counsel that the applicants are well-reputed businessm en and doing the business of Import and Export of fruits and vegetables to different countries including the business of Export of leather and other business. Moreover, they are recognized Shipping Agents since decades, hence they are in possession of Sales Tax Registration Certificate and other allied documents from the concerned Government Departments.
9. Accordingly, they, all along, have enjoyed spotless, unblemished reputation amongst the public in general as well as in the Government circle. It has, further, been contended by the learned counsel that the applicants were allotted Plots bearing Nos.21/L and 21/R, Block-A-2, Sabzi Mandi, Karachi pursuant to the directions of learned Ombudsman Sindh who held the enquiry upon the reference made to him by this Court in a Civil Suit bearing No.1542 of 2000 and gave his findings on 23-4- 2002 in para.16 of his decision in favour of the applicants.
10. ' It has, further, been contended by the learned counsel that pursuant to the above decision the then Administrator Market Committee Abdul Jabbar Abbasi and former Secretary submitted a summary which was duly approved and the questioned plots were allotted to the applicants. It has, also, been contended by the learned counsel that after allotment of the aforesaid plots, applicants moved an application, somewhere in 2002, such prior to the registration of the present F.I.R., for allotment of a plot admeasuring 480 Sq. Yards through auction platform, challan for payment of whose price was issued to them and they, accordingly, paid the same on 30th July, 2002 and 13th October, 2003. It has, therefore, been argued that the present F.I.R. Has, malafidely, been registered against the applicants who had been allotted plots, in question, after following the law and procedure by the management of the then Market Committee inasmuch as the said plots were neither allotted by Muhammad Akbar Zardari, Administrator nor by Abdul Rasheed Shaikh, Secretary. As a matter of fact the plots, in question, were allotted to the applicants following the findings of the learned Ombudsman and also in view of the summary prepared by former Administrator having been approved by the Market Committee. It has, also, been contended by the learned counsel that the mala fide on the part of the prosecution can be determined from the fact that contents of the F.I.R. Mention that alleged illegal allotment was made from 30th June to 30th September, 2004 whereas, admittedly, the applicants were allotted plots, in question, on 26-7-2002 and even challan for payment of price, being Rs.1,70,000 and Rs.2,42,000 for the adjacent plots were issued by the then Market Committee on 17-7-2002 and 30-10-2003 which were paid on 11th and 13th days of October, 2003 through bank namely Allied Bank Limited. It has, also, been contended by the learned counsel that entire action and proceedings have been initiated in this case against the applicants is mala fide as neither any open enquiry was ever conducted because the applicants never received any notice in this regard which is mandatory for an open enquiry.
11. ' Learned counsel appearing on behalf of applicant, Haji Shah Jehan, in Cr. B.A. No.969 of 2004, while adopting the arguments of the learned counsel appearing on behalf of applicants in Cr. B.A.
12. No.964 of 2004, has further contended that only three private persons are shown illegal allottees whereas allegation (b) contained in F.I.R. Itself discloses that 325 files were scrutinized and found in contravention of Government policy inasmuch as except these three private persons all other alleged illegal allottees have been shown as 'and all other illegal allottees/beneficiaries' in column
(x) of the list of accused persons. It has, therefore, been contended that this aspect of the case clearly proves the mala fide on the part of the prosecution/AntiCorruption officials who are making hectic efforts to arrest the applicants in order to falsely implicate them in this case and the whole purpose of this activity is to humiliate and harass the applicant for which purpose police has raided his house and his relatives many times which act restrains the applicant to pursue his ordinary course of life and was under a constant restraint. It has, also, been contended that the punishment of the offence with which the applicants in both Cr. B. Applications bearing Nos.964 and 969 of 2004 have been charged does not come within the prohibitory clause of section 497(1), Cr.P.C. He has relied upon the case of Meeran Bux v. The State and another PLD 1989 SC 347.
13. ' So far as the office objection relating to the direct approach to this Court is concerned, learned counsel has argued that it is true that propriety demands that applicants should have approached the original Court i.e. Special Court but it is not an absolute rule as depending upon the compelling circumstances of each case and if such an application has been moved before this Court and has been entertained by granting interim pre-arrest bail, then instead of dismissing the same on technical grounds it may be disposed of on merits. He, in this regard, has relied upon the case of Rais Wazir Ahmed v. The State 2004 SCM R 1167.
14. ' Learned counsel for applicant, Abdul Rasheed Sheikh, in Cr. B.A No.973 of 2004, has contended that the applicant is innocent and he has not committed the alleged offence, hence has been implicated falsely due to enmity on the part of Anti-Corruption officials. It has, also, been contended by the learned counsel that prosecution version creates doubt when complainant himself acts as Investigating Officer, hence the case requires further enquiry. He has relied upon the case of Abdul Rasheed v. The State PLD 2003 Kar. 682 in support of his contentions.
15. ' Learned counsel for the State has conceded to the grant of bail to applicants namely Haji Shah Jehan, Mansoor Akbar and Iqbal Akbar in Cr. B.As. Nos.964 and 969 of 2004 whereas he has opposed the grant of bail to applicant Abdul Rasheed Shaikh in Cr. B. A. No.973 of 2004 on the ground that he is main accused and sufficient evidence has, so far, been collected against him showing that he maintained forged accounts. Moreover, the learned counsel for the State has filed a photostat copy of letter addressed to the Advocate-General Sindh by Director Anti-Corruption Establishment Sindh, Karachi revealing that none of the applicants has joined the investigation and all of them have bitterest the concession of bail and hampered the investigation.
16. ' I have given my anxious consideration to the arguments of the respective parties, perused the record and gone through the case-law, cited by all the learned counsel appearing on behalf of the applicants and the learned counsel for the State. I have also perused the order passed by the learned Special Judge, Anti-Corruption (Provincial) Karachi, photostat copy of which has been placed by the learned counsel for the State, granting bail to co-accused Ghulam Muhammad, Muhammad Ayaz Khan, Aziz-ur-Rehman, Khadim Hussain and Muhammad Akbar Zardari.
17. The principle between bail before arrest and bail after arrest is entirely on different footings. In case of bail before arrest, requirement of law is that it is to be granted in very exceptional circumstances where the involvement of the applicant is due to mala fide and ulterior reasons and such mala fide is to be alleged specifically though not required to be proved. In this case, of course, mala fides have been alleged but the same have not been alleged specifically as propounded in various decisions of the Honourable Supreme Court such as the case of Muhammad Murad Khan v. Fazl-e- Sultan PLD 1983 SC 82 and Ziaul Hassan v. The State PLD 1984 SC 192. It has, further, been explored that right of pre-arrest bail is rare and very limited which could be extended in a very strong and exceptional circumstances and the same are based on mala fides/enmities. Reference can be made to the cases of Muhammad Afzal v. The State 1997 SCM R 278; Muhammad Saeed v. The State PLD 1999 Kar. 345 and Muhammad Azam v. The State 1996 SCM R 71. In the above cited cases the offences were punishable up to seven years yet the bail before arrest was declined.
18. However, the case of applicants, Mansoor Akbar and Iqbal Akbar, in Cr.B.A. No.964 of 2004 is almost distinguishable from the cases of other applicants and co-accused having been granted bail by the trial Court. It is matter of record that applicants were allotted Plots bearing Nos.21/L and 21/R, Block-A-2, Sabzi Mandi Karachi pursuant to the directions of the learned Ombudsman Sindh, who held the enquiry upon the reference made to him by this Court in a Civil Suit bearing No.1542 of 2000 and gave his findings on 23-4-2002 in para.16 of his decision which read as under:-- "Mr. Dur Muhammad Abbasi, Administrator, states that still a number of shops are available for allotment at the New Sabzi Mandi, which may be offered to those who are presently engaged in wholesale business of fruit and/or vegetable or onion or potato. The complainants being engaged in such business in the Old Sabzi Mandi, therefore, quality to be considered, on merit, under this category. I accordingly direct the Agencies to consider the case of the complaints on merit under intimation to me within two months hereof."
19. ' The record reveals that pursuant to the above decision the then Administrator Market Committee Abdul Jabbar Abbasi and former Secretary submitted a summary which was duly approved and the questioned plots were allotted to the applicants, Mansoor Akbar and Iqbal Akbar. After allotment of the aforesaid plots, applicants moved an application, somewhere in 2002, much prior to the registration of the present F.I.R., for allotment of a plot admeasuring 480 sq. Yards through auction platform, challan for payment of whose price was issued to them and they, accordingly, paid the same on 30th July, 2002 and 13th October, 2003. In that applicants were allotted plots, in question, after following the law and procedure by the management of the then Market Committee inasmuch as the said plots were neither allotted by co-accused Muhammad Akbar Zardari, Administrator nor by co-accused Abdul Rasheed Shaikh, Secretary. As a matter of fact the plots, in question, were allotted to the applicants following the findings of the learned Ombudsman and also in view of the summary prepared by former Administrator having been approved by the Market Committee, hence the contention of the learned counsel that the mala fide on part of the prosecution can be determined from the fact that contents of the F.I.R. Mention that alleged illegal allotment was made from 30th June to 30th September, 2004 whereas, admittedly, the applicants were allotted plots, in question, on 26-7-2002 and even challan for payment of price, being Rs.1,70,000 and Rs.2,42,000 for the adjacent plots were issued by the then Market Committee on 17- 7-2002 and 30-10-2003 which were paid on 11th and 13th days of October, 2003 through bank namely Allied Bank Limited can be given weight.
20. ' Resultantly, I hereby confirm interim bail granted to applicants Mansoor Akbar and Iqbal Akbar, in Cr. B.A. No.964 of 2004 on the same terms and conditions.
21. So far as the applicants, Haji Shah Jehan and Abdul Rasheed Shaikh in Cr. B. Applications Nos.969 and 973 of 2004, respectively are concerned, I am of the considered view that they are not entitled to the grant of pre-arrest bail for the reason that the punishment provided for an offence, allegedly committed by the applicants though does not come within the prohibitory clause of section 497(1), Cr.P.C., inasmuch as the Courts, in matters of bail has to see the seriousness of offence committed by an individual in his private capacity who belongs to a distinct class and qualifies 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. 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. In the above scenario the Court's approach should be reformation-oriented with the desire to suppress the above mischievous. 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. Further more, Court has, also, in bail matter, to make a distinction between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole. 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 and the Court has to be strict in exercise of discretion of bail granting to the offenders who belong to a distinct class an qualify to be treated falling within an exceptional circumstances 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.
22. ' For the above stated reasons, not only applications for pre-arrest bail moved by applicants Haji Shah Jehan and Abdul Rasheed Shaikh in Cr. B. Applications Nos.969 and 973 of 2004, respectively, are hereby dismissed but office is also directed to issue Show-cause notice to co-accused Ghulam Muhammad, Muhammad Ayaz Khan, Aziz-ur-Rehman, Khadim Hussain and Muhammad Akbar Zardari, having been admitted to bail by the learned Special Judge Anti-Corruption (Provincial)
23. Karachi as to why their bail may not be cancelled.
24. ' Cr. B. Applications Nos.964, 969 and 973 of 2004 stand disposed of in the above terms.