ORDER SH. AHMAD FAROOQ, J.-- Shakeel Anjum Minhas/petitioner on being nominated as an accused in a case arising out of F.I.R. No. 200 of 2009, dated 23-12-2009, registered in Police Station, Anti-Corruption Establishment, Lahore, under sections 166, 109, 409, 420, 468, 471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and having his pre-arrest bail dismissed by the learned Special Judge, Anti-Corruption, Lahore, on 21-5-2010, has approached this Court through the instant petition for the grant of pre-arrest bail.
2. The aforesaid criminal case has been registered on the complaint of Director-General, LDA, wherein he contended that in view of the mushroom ,growth of High Rise Buildings in the area of Lahore Development Authority, being constructed in violation of Building Rules and Regulations, the Hon'ble Supreme Court of Pakistan took a suo motu action in the matter and made certain observations regarding criminal neglect of duties on the part of LDA officials in the order dated 19- 7-2006. Subsequently, on 11-5-2007, the Hon'ble Supreme Court of Pakistan constituted a Commission, with a mandate to carry out the survey of all the High Rise Buildings, having three storeys or more, situated in Lahore, irrespective of their being completely constructed or under construction, to check whether such buildings were constructed after the proper sanctioning of the plans and fulfilling all legal requirements i.e. Rules and Regulations on the subject, including taking steps to assess the load-bearing capacity and the soil, and the availability of necessary infrastructure to cater for the impact created by such like buildings and the measures to ensure the structure stability. After the report of the Commission, a high level inquiry committee was constituted by the Chief Minister, which submitted its detailed enquiry report wherein 33 officers/officials of the LDA, including the present petitioner were found to be involved in the commission of illegal acts of criminal negligence/corruption, which had resulted in construction of High Rise Buildings, in violation of Rules and Regulations. The complainant thus, sought legal action against all the accused persons under the relevant rules/regulations of the Anti-Corruption Laws, whereupon the above said F.I.R. Was registered.
3. The learned counsel for the petitioner contended that at the time of construction of most of the disputed high rise buildings, the petitioner was not posted in the said area and the buildings, which were constructed during his period of posting in the relevant area, he had taken all lawful steps for demolition of the said buildings. The learned counsel further contended that from the contents of the F.I.R., it is evident that the petitioner has not committed any offence falling within the mischief of sections 166, 109, 409, 420, 468, 471, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947, and involvement of the petitioner in these offences being doubtful, he is entitled to the concession of pre-arrest bail. The learned counsel next contended that the punishment . Of the offences alleged to have been committed by the petitioner does not fall within the prohibitory Clause of section 497(1), Cr.P.C. The learned counsel argued that the petitioner is also entitled to bail on the principle of consistency as his co-accused, namely, Muhammad Fahim Chaudhry and Malik Ijaz Ahmad, have been granted bail by this Court. The learned counsel lastly argued that there is no proof of receiving of illegal gratification by the petitioner in respect of any of the disputed high rise buildings.
4. Conversely, the learned D.P.G as well as the learned counsel for the complainant have contested the instant bail petition. They argued that the petitioner intentionally did not take any severe action against violations of building bye-laws and Rules and Regulations committed during the construction of high rise buildings. They further submitted that the petitioner has committed serious criminal misconduct and criminal negligence, which has resulted in colossal loss to public exchequer as well as private persons, who have been deprived of their heavy investments, on account of demolition of disputed high rise buildings under the orders of the Hon'ble Supreme Court of Pakistan. They also argued that the petitioner is not entitled to pre-arrest bail, which is an extraordinary relief.
5. Arguments heard. Record perused.
6. According to the version of the prosecution, 15 different high rise buildings were illegally constructed in the city of Lahore, and the present petitioner did not take any action during the period of his posting in respect of the violations of the sanctioned site-plans and building bye-laws committed therein. However, the learned counsel for the petitioner has pointed out that at the time of the construction of most of the aforementioned 15 buildings, either the petitioner was not posted in the relevant area or the buildings had already been completed prior to his period of posting. In this connection, a reference could be made to high rise building constructed at 244 and 244-A, Kamran Block, Allama Iqbal Town, Lahore, 3 Block E-2, Gulberg-III, Lahore, 77-E-I Gulberg-II, Lahore, 37-J Gulberg-III. Lahore, 16 Commercial Zone, Gulberg III, Lahore etc. During the investigation, it has come on record that the petitioner had issued notices and taken legal action against some of the owners of the high rise buildings for violating the building bye-laws and Rules and A Regulations. It is also significant to note that the site plans of the said buildings were not approved by the petitioner and he was only performing supervisory duties to check the violation of any LDA Rules and Regulations by any builders.
7. A bare perusal of the F.I.R. Would reveal that constituents of offences falling under sections 409, 420, 468 and 471 i.e. Criminal breach of trust, cheating, forgery or using a forged document as genuine are, prima facie, not made out against the petitioner. Similarly, prima facie, there is no direct evidence of receipt of any illegal gratification by the petitioner for extending B favour to any of the builders of disputed high rise buildings. Hence, prima facie, the commission of the alleged offences by the petitioner is open to doubt. Needless to mention here that benefit of doubt is to be given to an accused even at bail stage.
8. Furthermore, the punishment of the offences alleged to have been committed by the petitioner does not fall within the prohibitory clause of section 497(1), Cr.P.C. And grant of bail in such like cases is a rule and refusal an exception. The investigation is complete and nothing is to be recovered from the petitioner. The petitioner is also entitled to the concession of bail on the rule of consistency as his co-accused, namely, Muhammad Fahim and Ejaz Ahmad Malik, against whom similar allegations were levelled, have already been granted bail by this Court, vide order dated 16- 4-2010, passed in Criminal Miscellaneous No.3658-B of 2010. In these circumstances, intended arrest of the petitioner would not advance the cause of justice rather, it would result in his unnecessary incarceration and humiliation at the hands of the police, which is not the purpose of law.
9. In view of the above, this being a fit case for the grant of pre-arrest bail, the instant petition is accepted and the ad interim pre-arrest bail already granted to the petitioner on 17-6-2010 is hereby B confirmed subject to submission of bail bond in the sum of Rs.100,000, with one surety, in the like amount, to the D satisfaction of the learned trial Court.