' M. BILAL KHAN, J.---Nadeem Asghar Kaira son of Haji Muhammad Asghar Kaira, the petitioner, by filing the instant petition seeks post-arrest bail in case F.I.R. No.4 of 2003, dated 7-5-2003, registered at Police Station A.C.E., Gujrat for offences under sections 201, 409, 447, 109, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947.
2. The F.I.R. Registered at the instance of Mian Muhammad Idrees, Naib Nazim, Member, Tehsil Council Kharian, District Gujrat runs into three foolscap papers and most of the narrative therein is not relevant for the purpose of disposal of this bail application. However, there are four main allegations against the petitioner, which are as follows:--
(1) In the recently held General ' Elections the elder brother of the Nazim was a candidate of National Assembly. In order to get sympathies of the public, the Tehsil Nazim by misusing his official position and without regard to Law/Rules/Financial discipline, has started execution of development projects worth Rs.50 millions (Five crores). The development projects, the executions of which have been taken in hand were neither approved by the Tehsil Council nor the same were included in the Approved Annual Works Programme. The projects have been selected by Tehsil Nazim according to his own whims and wishes, so that the electorates of his brother (candidate for NA) may be pacified. By doing so the genuine needs of the area and projects having public importance were ignored. In the approval budget of the Tehsil Municipal Administration an allocation of 2.20 or 2.60 crore was made for original works, which too has not been regarded. The Tehsil Municipal Officer through his grave act has already advised the Tehsil Officer (Finance) to get the matter regularized even then no action has been taken by the Tehsil Nazim. His arrogant behaviour clearly indicates that he has no regards to law and Rules. This glaring irregularity constitutes misconduct against the Tehsil Nazim.
(2) Tehsil Nazim is the Manager of the properties of the Tehsil Municipal Administration. A very precious property of the Tehsil Municipal ' Administration situated in the heart of Lalamusa Town situated on main G.T. Road is being misappropriated. First of all the file relating to this property has been misplaced from the record of the Tehsil Municipal Administration. It is an open secret that a commercial Plaza is being constructed in the garb of a Library. It may be appreciated that maintenance of Libraries is not the function of the Tehsil Municipal Administration. This function has been assigned to the Union Governments under section 76(7) of the Punjab Local Government Ordinance, 2001. Hence the Tehsil Nazim is personally responsible for the loss of property and violation of the provisions of law as required under section 59 of the Punjab Local Government Ordinance, 2001 which is reproduced below: Personal responsibility of Tehsil Nazim:--The Tehsil Nazim shall be personally responsible for any loss, financial or otherwise, flowing from the decisions made by him personally or under his directions in violation of any provisions of the Ordinance or any other law for the time being in force and for any expenditure incurred without lawful authority.
(3) Due to ban imposed on recruitment, the Tehsil Nazim has engaged a large number of work charge-list attached. The following work charged employees are working at the residence of the Tehsil Nazim as his personal servants, i.e. Mr. Muhammad Akram Khokhar s/o Malay Khan and nineteen others, whose names find mention in the F.I.R. This act of the Tehsil Nazim is not only against discipline but also tantamounts to misconduct and misuse of authority. He is attributing financial loss to the Tehsil Municipal Administration. The emoluments of these work charged personals should be recovered from the Tehsil Nazim and credit to the Tehsil Municipal Administration.
(4) A few days ago a news item appeared in the newspaper that all the establishments of TMA Kharian including the defunct MC, Lalamusa, TC Kharian and TC Dinga has gone on strike. The news item quoted that essential municipal services, i.e. Water Supply, Street Light along with Sanitation of all the three cities has been stopped. The situation continued almost for five to six days. In the light of above- mentioned irregularities and blunders committed by the Tehsi, Nazim Kharian, it is respectfully prayed that appropriate action under the Punjab Local Government Ordinance, 2001 for his removal may kindly be taken at your earliest convenience in order to redress the genuine grievances of the inhabitants of the Kharian Tehsil
3. After registration of the case, the petitioner applied to this Court for protective pre-arrest bail by means of his application bearing Criminal Miscellaneous No.3988/B of 2005, which was allowed to him till 10-6-2005. ThereaLer, he preferred his application for pre-arrest bail before the learned Special Judge Anti-Corruption, Gujgranwala, who proceeded to dismiss the same vide his order, dated 23-6-2005. A fter his arrest, the petitioner moved the learned Special Judge Anti-Corruption, Gujranwaia, for his post-arrest, bail, however, his plea was turned down by the said learned Judge vide order, dated 21-7-2005. Hence, the instant petition.
4. Mr. Aitzaz Ahsan, the learned counsel for the petitioner argued that the case is politically motivated as the petitioner is politically opposed to the sitting Chief Minister of Punjab; that after the registration of the case, the petitioner has produced overwhelming documentary evidence before the Investigating Officer to establish his innocence and to show that the allegations in the F.I.R. Are baseless; that no inquiry as contemplated in the Anti-Corruption Rules had been condPcted before registering the F.I.R. And as such no opportunity of hearing was afford,d to him to present his point of view; that the subject-matter of the F.I.R. Had been inquired into at a very high level by the Government itself and during the course of inquiry no wrongdoing had been established against the petitioner; that a bare reading of the F.I.R. Would disclosthat no offence under section 409 P.P.C. Is made out and that the said section has been added only with a view to magnifying the charge against the petitioner as also to making the same non-bailable. He finally argued that all these ,factors make the petitioner's case one of 'further inquiry entitling him to the concession of bail.
5. On the other hand, ,the learned Additional Advocate General -issisted by the learned State counsel strenuously opposed the grant of bail to the petitioner. They argued that the petitioner in his capacity as Tehsil Nazim has made expenditure of 5.3 crores of rupees as against the sanctioned amount of Rs.2.2 crores of rupees and that the said money had been spent in the area wherefrom his brother was a candidate for the National Assembly Seat in the general elections of 2002; that the petitioner as such has committed a very serious offence and has caused considerable loss to the public exchequer; that section 59 of the Punjab Local Government Ordinance, 2001 also saddles the petitioner with personal liability to account for the said expenditure; that in the special audit report also the allegations against the petitioner have been established. They finally argued that the petitioner being involved in ' serious criminal breach of trust is not entitled to the concession of bail.
6. I have heard the learned counsel for the both the sides at considerable length and have also gone through the record brought by Saif Anwar, Deputy Director, Anti-Corruption Establishment, Lahore.
7. It has been observed that the allegations, which find mention in the F.I.R. Had been inquired into by an Inquiry Committee headed by the Director General (Inspection) in the LG&RD Department.
After a detailed inquiry, convener of the said Inquiry Committee, Muhammad Iqbal Saddozai, Director General (Inspection), LG & RD Department submitted his report on 1-4-2003 exonerating the petitioner of all the charges levelled against him. It may not been necessary to go into detailed findings recorded in the inquiry as the said inquiry report is appended with this petition as Annex 'H' in the additional documents, which had been placed on record on behalf of the petitioner by means of application bearing Criminal Miscellaneous No.1394/M of 2005.It is true that departmental action and criminal action against a civil servant can go side by side and may even end in varying results, yet the fact remains that since the subject-matter of the inquiry was exactly the same, therefore, for the purpose of deciding this bail application, the findings of the inquiry are not totally irrelevant. I asked the Deputy Director Anti-Corruption Establishment, present in the Court, to show me the special audit report, on which the learned Additional Advocate General had laid a lot of emphasis, but he could not produce- the same, as it was not part of the case file.
Insofar as Charge No.2 regarding misutilization of eleven Marla Plot belonging to the Tehsil Municipal Administration is concerned, it was alleged that a Library has been built on the said plot by a Philantropist and that the Tehsil Municipal Administration did not have any authority to establish or start a library. The Deputy Director, in attendance, on Court query submitted that the ownership of the said property is still in the name of the Tehsil Administration and the control of the Library is also in its bands. Therefore, it is yet to be determined as to how the petitioner was to benefit from the construction of Library. Insofar as Charge No.4 is concerned, I have also not been able to understand as to how appearance of a news item in some newspaper that some essential municipal services, like water supply, street light or sanitation in some areas had been stopped due to strike observed by the Tehsil Council Staff could be termed as a criminal offence on the part of the Tehsil Nazim. Be that as it may, since the case is still at its investigation stage, therefore, I would not like to make a detailed comment on the quality of material available on the record, lest it prejudice the case of the either of the sides. Suffice it to say that in the peculiar facts and circumstances, the culpability of the petitioner under section 409, P.P.C. As also under the other sections charged in the F.I.R. Is a matter of further probe within the meanings of subsection (2) of section 497, Cr.P.C.
8. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the Iike amount to the satisfaction of the learned trial Court.
' Before parting with this order, I would like to add that the observations made hereinabove are tentative in nature and are not designed to influence the course of trial in any manner whatsoever.