I propose to dispose of two connected bail applications bearing Crl. Misc. No, 3935/B of 2009 (Zain- ul-Abideen v. The State) and Crl. Misc. No, 3936/B of 2009 (Tahir Jawad Bajwa u. The State) as both these petitions arise out same F.I.R.
2. Zain-ul-Abideen son of Syed Laal Shah and Tahir Jawad Bajwa son of Muhammad Alam Bajwa, by filing these petitions seek post-arrest bail in case F.I.R No, 20, dated 17.2.2009, registered with Police Station DACE Punjab, Lahore for offences under Sections 420, 468, 471 read with Section 109 P.P.0 and Section 5(2) of the Prevention of Corruption Act, 1947 at the instance of Nazar Muhammad Chohan, Chairman, Punjab Cooperative Board for Liquidation, Lahore.
2-A. Precisely the facts giving rise to these bail applications are that the complainant lodged a complaint before the Director General, Anti-Corruption Establishment Punjab, Lahore against Brig.
Farooq Maan, Ex. Chairman PCBL, Ltd. Col. Mansha Zahid, Ex-Additional Secretary (Properties), Zain- ul-Abideen, Deputy Secretary (Properties) for doling out very expensive property (measuring 196 kanals and 6 marlas adjoining DHA, situate in Mauza Sora) of PCBL, worth over one billion rupees; the said land was initially purchased by NICFC vide sale deed dated 22.4.1989 and thereafter it was sold out to private persons regarding which NOC was issued on 7.4.2005; this NOC was given by the Committee, which was presided by the Chairman and the Secretary; during the course of inquiry by the Anti-Corruption Establishment, 34 persons including the petitioners were found involved in the alleged commission of crime.
3. The learned counsel for the petitioners forcefully argued that the F.I.R has been lodged after delay of about eight years; that the petitioner have been involved in this case due to mala-fide as in the Meeting of NOC Verification Committee held on 30.11.2004 as many as thirteen persons were members, but out of them only five persons, namely, Brig. Muhammad Farooq Maan, Ex-Chairman, Kh. Riaz Ahmad, Addl. Secretary (Properties), Malik Mushtaq Ahmad, Legal Consultant, Syed Zain- ul-Abideen, Deputy Secretary and Tahir Bajwa (Representative), Executive Incharge NICFC had been arraigned in the case and no action has been taken against the other persons; that the only allegation against Syed Zain-ul-Abideen (petitioner) is that he prepared working paper of the aforesaid Meeting and the main role of granting NOC is assigned to Brig. Farooq Maan; that the policy decision in which NOC was issued was taken in a meeting held on. 30.11.2004; that the action taken in the meeting are protected under Section 9 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 and was done in good faith; that the complainant cannot review the judicial order passed by the competent authorities under the law and that power of review is not available with the Chairman or any authority under the aforesaid Act of. 1993; that proceedings under Section 7 of the said Act against the officers of the Undesirable Society connected with the affairs of the society can only be initiated with the approval of the Cooperative Judge; that the allegation in the F.I.R that the alleged sale-deed was wrongly registered with the Sub-Registrar, Saddar Division instead of Model Town Division, where the property in question is situated has no significance in view of the provisions of Section 30 of the Registration Act; that the petitioners are behind the bars for the last about five months; that they are not previous record holders; that they are no more required for further investigation; that no recovery whatsoever has been effected form them.
4. Conversely, the learned Assistant District Public Prosecutor for the State assisted by the learned counsel for the complainant opposed the grant of bail to the petitioners by submitting that Syed Zain-ulAbideen petitioner has been specifically nominated in the F.I.R, however, both the petitioners were members of the NOC Verification Committee; that the sale-deed was registered with Sub-Registrar Saddar Division with mala fide intention, whereas it should be registered at Model Town Sub Division, where the property is situated, under Section 28 of Registration Act; that Syed Zain-ul-Abideen petitioner has not applied his mind and has given favourable comments for his personal gains; that civil suit for cancellation of the alleged sale-deed has been filed before the Civil Court, which is pending adjudication; that it is a void order, which can be reviewed or altered at any time.
5. I have heard the learned counsel for the parties at considerable length and have also gone through the record.
6. Admittedly there is delay of about four years in lodging the crime report. The only role assigned to Syed Zain-ul-Abideen petitioner was that he prepared working papers of the NOC Verification Committee Meeting. Insofar as Tariq Bajwa, petitioner is concerned, he being representative of the NICFC was member of the said Verification Meeting, whereas the NOC was issued by the Committee headed by Brig. Farooq Maan, Ex-Chairman. NOC dated 7.4.2005 indicates that the same was given after thorough investigation by the Board on the order of the Chairman dated 4.12.2004 and NOC Verification Committee held on 30.11.2004, which was attended by as many as thirteen persons. The petitioners have joined the investigation, during the course whereof nothing incriminating could be recovered from them by the investigation agency. I do not want to further dwell on the merits or demerits of the case, lest it may prejudice the case of the either of the sides, however, it is observed that the petitioners are behind the bars for the last almost five months and are no more required for further investigation. The offences with which they stand charged for the time being do not attract the prohibitory clause of Section 497(1) Cr.P.C. Bail in such-like cases is a rule and refusal thereof an exception. Reference can profitably be made to the cases of Tariq Bashir and 5 others u. The State (P.L.D. 1995 S.0 34), Chaudhry Shujat Hussain v. The State (1995 SCM R 1249), Sikandar Karim v. The State (1995 SCM R 387) and Subhan Khan v. The State (2002 SCM R 1797). The learned counsel for the complainant have not been able to point out any exceptional circumstance in this case, which could disentitle the petitioners to the grant of bail.
Even otherwise, the true import of the accusations brought against them will be ascertained at the time of trial, which is not in sight in the near future and the accused cannot be incarcerated for an indefinite period as a measure of punishment. If ultimately they will be found guilty, they would face the consequences. The present case depends upon the documentary evidence, which is in possession of the prosecution and there in no possibility of tampering with the same by the petitioners. Reference can advantageously be made to the case off Saeed Ahmad v. The State (1995 SCM R 170). More allegation of fraud and forgery levelled in the FIR are not prima facie sufficient to connect the petitioners in the instant case. It has been held in the case of Haji Wali Muhammad v. The State (1969 SMCR 233) that the bail should ordinarily be allowed disregarding grounds of seriousness or anti-social nature of offence unless there be strong grounds in the shape of evidence for belief that the accused is guilty. Even in the latest pronouncement of the Hon'ble Apex Court in the case of Haji Muhammad Nazir and others v. The State (2008 SCM R 807)
Hon'ble Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice had observed that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he is required to be produced.
7. It has been observed that the petitioners being subordinates were neither decision making authorities nor were in a position to influence their superiors. Admittedly, the registered sale-deed dated 29.4.1989 is still in tact. It has been informed by the learned counsel for the complainant that they have filed a suit regarding cancellation of the sale-deed in a Civil Court. The Questions of interpretation of certain documents qua effect of Section 30 of the Registration Act, issuance of NOC by PCBL and NOC Verification Committee, effect of delay in mutation and NOC after the sale- deed and other legal issues relating to jurisdiction are involved in the matter, which need thorough probe, which cannot be resolved in the present proceedings. The same can only be resolved by the competent forum. In this view of the matter, prima-facie sufficient grounds exist, which make the case of the petitioners of one of further inquiry.
8. The petitioners being Government servants are not likely to abscond and misuse the concession of bail. Any comment at this stage by this Court on the question of fraud or forgery would amount to prejudging the matter, which obviously has to be thrashed out during the course of trial. In these circumstances and keeping in view the Clause-D of the National Judicial Policy, 2009, qua Expeditious Disposal of Cases wherein it was mentioned that to overcome the problem of congestion in jails, the Court should exercise powers under Section 497 Cr.P.C. keeping in view the principles of grant of bail including the principle that if the offence does not fall under the purview of prohibitory clause, grant of bail is a rule and refusal is an exception, I am inclined to enlarge the petitioners on bail.
9. Resultantly, these petitions are allowed and the petitioners are admitted to post-arrest bail subject their furnishing bail bounds in the sum of Rs,20,00,000/-(Rupees twenty lacs) each with one surety each in the like amount to the satisfaction of the trial Court.
10. The petitioners are directed to deposit their passports, if any, with the Deputy Registrar (Judl.), who shall keep them in safe custody till decision of the case by the trial Court, so that they may not leave the country. The relevant authorities shall also be informed.
11.It has been noticed that the case was registered in February, 2009 and the investigation has not been completed so far. In these circumstances, I direct the investigating agency to complete investigation within shortest possible time and submit report under Section 173 Cr.P.C. before the Court.