Marghoob All Butt and Mehr Liaqat Ali, petitioners through Crl. Misc. No, 1035-B of 2011 and Cr1. Misc.
No, 1064-B of 2011 seeks pre-arrest bail, respectively in case FIR No,23 dated 18.06.2009 for the offences under Section 409 of, PPC read with Section 5(2) of Prevention of Corruption Act, 1997 registered at Police Station ACE, Dera Ghazi Khan.
2. As both above mentioned petitions are outcome of one and same FIR, hence, are being decided together through this single order.
3. As per allegations narrated in the FIR, construction work of MANKA Canal under the control of Irrigation Department, Dera Ghazi Khan was found sub-standard. In this respect DCO, Dera Ghazi Khan directed EDO (W&S) to visit the site and give his detailed report. EDO (W&S) asked the Junior Research Officer, District Lab (W&S) to carry out tests pertaining to the site work. According to the report of Research Officer concerned, Officer Irrigation was reluctant to facilitate with the relevant record which depicts malafide intention of the executing Agency. It was further alleged that sub- standard material was being used in the aforementioned project.
4. Learned counsel for the petitioners submits that the alleged occurrence took place on 28.06.2008 whereas FIR was registered on 18.06.2009 with extra ordinary delay of about one year; that petitioners were not nominated in the FIR but later on with malafide intention their names were inserted on the basis of preliminary inquiry conducted by Anti-Corruption Establishment; that Merghoob Ali Butt, petitioner was not a government servant so the offence under Section 5(2) of Prevention of Corruption Act, 1947 is not attracted against him; that regarding construction of aforementioned MANKA Canal an agreement was signed between Government of the Punjab Irrigation Department and KB Construction Company and keeping in view Clatise-31 of said agreement if KB Construction Company would use sub-standard material, then it would forthwith rectify or remove material or articles at its own proper charges and cost, and in the event of his failing to do so within a period to be specified by the engineer-in-charge in his demand aforesaid, then the engineer-in-charge may rectify or remove and re-execute the work, remove and replace with others, the materials and articles complained of, so keeping in view the aforementioned agreement if the sub-standard work was being done at the aforementioned MANKA Canal then KB Construction Company was liable to rectify the same; that construction of MANKA Canal was still under progress and according to Clause-40 of the agreement the Engineer-in-Charge will issue to the contractor a certificate of completion in respect of the work and if the contractor shall fail to comply with the requirements of this clause the contractor shall have no claim in respect of any such scaffoldings or surplus materials of all kinds; that Abdul Sami, co-accused issued so many notices to the Tehsil Municipal Administrator that there was a great difficulty in execution of work because the sewerage was being dropped in the MANKA Canal at so many points but no heed was given by the TMA in this regard and it was the reason for the sub-standard work being done there; that there was no direct evidence connecting the petitioners with the commission of offence; that no offence under Section 5(2) of Prevention of Corruption Act, 1997 and 409 of, PPC was made out against the petitioners keeping in view the allegations contained in the FIR; that during inquiry conducted by ACE, Dera Ghazi Khan, loss amounting to Rs,78,82,209/- and Rs,30,11,000/- was recovered from KB Construction Company by the department. Finally, it was prayed that pre-arrest bail petition of Abdul Sami and Tanvir Hussain and post arrest bail of Sh. Muhammad Arshad, petitioner has been accepted by this Court vide order dated 15.03.2011 and role of the petitioners is almost at par with the aforementioned accused persons, so, they have prayed for confirmation of their pre-arrest bail already granted to them.
5. On the other hand learned DPG has opposed the aforementioned petitions and submits that petitioners were responsible for sub-standard work done at MANKA Canal and prayed for dismissal of all these petitions.
6. I have heard the learned counsel for the parties and perused the record.
7. There was extra ordinary delay of about one year in lodging of FIR without proper explanation.
Admittedly petitioners were not nominated in the FIR but they have been involved in this case on the basis of inquiry conducted by Anti-Corruption Establishment. No specific role had been assigned to the petitioners during inquiry. Keeping in view the allegations contained in the FIR, application of offences under Section 409 of, PPC read with Section 5(2) Prevention of Corruption Act, 1997 requires further inquiry. Marghoob Ali Butt, petitioner is not a government servant, so the offence under. Section 5(2) of Prevention of Corruption Act, 1947 is not made out against him. There is no direct evidence against the petitioners connecting them with the commission of offence.
Perusal of record reveals that District Accounts Officer, Construction Division has confirmed that KB Construction Company has deposited the aforementioned amount of loss. Perusal of agreement between Government of the Punjab Irrigation Department and KB Construction Company reveals that if KB Construction Company would use sub-standard material during the construction of MANKA Canal, then it would forthwith rectify or remove material or articles at its own proper charges and cost, and in the event of his failing to do so within a period to be specified by the engineer-in-charge in his demand aforesaid, then the engineer-in-charge may rectify or remove and re-execute the work, remove and replace with others, the materials and articles complained of. Keeping in view the aforementioned agreement, if sub-standard work was being done by KB Construction Company at the aforementioned MANKA Canal then it was the company who was liable to rectify the same. In such situation, only negligence can be attributed to the petitioners.
Perusal of record also reveals that Abdul Sami, co-accused issued many notices to TMA that there was great difficulty in execution of work as sewerage was being dropped in the aforementioned MANKA Canal at so many points but no heed was given by the TMA in this regard and this was a great hurdle in the execution of proper work being done in the said Canal. Perusal of order dated 15.03.2011 passed by this Court reveals that Abdul Sami and Tanvir Hussain, co-accused were granted pre-arrest bail and Sh. Muhammad Arshad, co-accused was granted post arrest bail by this Court. The role of the petitioners is almost at par with the aforementioned co-accused.
8. For what has been discussed above, Crl. Misc. No,1035-B of 2011 filed by Marghoob Ali Butt, petitioner and Crl. Misc. No,1064-B of 2011 filed by Mehr Liaqat Ali, petitioner, are accepted. Ad interim pre-arrest bail already granted to the petitioners Marghoob Ali Butt and Mehr Liaqat Ali, petitioners are confirmed subject to their furnishing fresh bail bonds in the sum of Rs, 1,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.