SALAHUDDIN PANHW AR, J.---Through this application, the applicants seek pre arrest bail in Crime No.03 of 2013 of P .S ACE Larkana under sections 409, 467, 468, 471A, 34, P .P.C. Read with section 5(2) of Act-II of 1947.
2. Facts of the.Prosecution case are that on 29.01.2013 complainant Inspector Kazi Sharafuddin, Circle Officer, ACE, Larkana lodged FIR alleging therein that case is being registered after approval of competent authority viz. ACC-I Sindh, Karachi in its meeting held on 01.11.2012 and as per orders of Depu ty Director ACE, Larkana in the result of investigation into case Crime No. G0-01 of 2011 of ACE, Larkana. It is further alleged in the FIR that Ali Ahmed Magsi, the then TMO, TMA, Dokri reported that accused Nizamuddin Bughio, ExTMO/Administrator , TMA, Dokri was retired from his service on 16.10.2010 vide Government Notification No.SLGB/SCUG/A0 (Admin)1/4(5365) 2010/1272, dated 10.06.2010, after his retirement accused Nizamuddin Bughio in collusion with accused Abdul Sattar Jalbani, Taluka Officer (Finance), TMA Dokri jointly drawn an amount of Rs.1,67,41,162/- illegally and unauthorisedly during 19.10.2010 to 22.12.2010, as per bank settlement of NBP Dokri and misappropriated the same amount by way of fraud and forgery and caused loss to the Government. The above named accused persons viz. Nizamuddin Bughio and Abdul Sattar Jalbani, Ex-T.0, Finance, TMA, Dokri committed the offence of corruption, fraud, forgery and misappropriation of Government amount in collusion with each other and caused loss to Government and wrongful gain to themselves, hence this case is being registered on behalf of State.
3. After registration of FIR, the ACE Kamber started investigation therefore, 'apprehending their arrest the applicants approached learned Court of Special Judge, Anti-Corruption, Larkana who initially granted interim pre arrest bail and thereafter the bail plea of the applicants was dismissed by order dated 25.05.2013.
4. It is contended by learned counsel for the applicants that the applicants are innocent and have been falsely implicated in this case due to departmental intrigue and mala fide intention on the part of ACE; there is delay of three years in lodging instant FIR therefore, possibility of managing evidence for false implication of the present applicants cannot be ruled out; no date and time of alleged incident has been mentioned in the FIR; the prosecution case calls for further inquiry hence their interim pre arrest ed by this Court earlier may be confirmed on same terms and conditions. In support of his contentions, learned counsel for the applicants has relied upon the cases reported as Muhammad Rafique v. Muhammad Hanif and 2 others (1988 SCMR 1222 ), ljaz Akhtar v.
The State (1978 SCMR 64 ) and Saeed Ahmed v . The State (1996 SCMR 1 132).
5. In contra, learned A.P.G has pointed out that the applicants have committed fraud and misappropriation of huge money causing great loss to the government exchequer; they have been named in FIR with specific role in commission of offence and there is sufficient material available against the applicants to connect them with the commission of offence, therefore, they are not entitled to the confirmation of interim pre arrest ed by this Court earlier; applicant No. 1 after retirement issued series of cheques, in the name of fake persons, same were encashed by their staff, cheques were not payee account; in support of his contentions, he has relied upon cases reported in 1995 PCr .LJ 1361 and 2010 SCMR 1735 .
4(sic.) I have heard learned counsel for the parties and perused the material brought on record.
5(sic.) Before dilating upon the merits of the case, it is necessary to say that 'corruption', in a civilized society , is a disease like cancer which, if not detected in time, is surely to malign the polity of country leading to disastrous consequences. It is now termed as Royal thievery which affects not an 'individual' but the economy and destroys the cultural heritage, hence the time has come to consider such 'crime' as one of the serious problems and threats, posed to the stability and security of societies, undermining the institutions and values of democracy , ethical values and justice and jeopardizing sustainable development and the rule of law. One must always keep distinction an act of receiving money as 'consideration' for doing an illegal or legal act from the one which falls within meaning of those corruptions, qualifying the-term 'misappropriation'.
6. Having said so, now I revert to merits of the case in hand and from perusal of the record it appears that applicants/accused have allegedly misappropriated the amount of TMA Dokri. It also appears from record that applicants/accused (Nizamuddin Bughio and Abdul Sattar Jalbani, Taluka Officer (Finance), TMA Dokri) have not denied issuance of cheques and encash ment of government money on strength thereof hence prima facie there appears no mala fide on part of the Investigating Agency to falsely involve the applicants/accused. The applicant Nizamuddin Bughio, even, has not denied continuing dealing with financial affairs of the TMA after his retirement which in no way appears to be authorized , and legal. There is no denial to fact of misappropriation of government amount as is evident from so far collecte d material hence when the applicants do not deny encashment of such amount during their period and in result of their active involvement the applicants/accused prima facie appear to be linked with the of fence with which they are charged.
7. The present applicants/accused have not placed any thing on record which could prima facie establish mala fide on part of the Investigating Agency or the department thattheir involvement was result of departmental intrigue or was a result of mala fide intention on the part of ACE. I have no hesitation in saying that mere words of `mala fide' or 'departmental intrigue' alone shall not help the accused for extra ordinary concession of pre-arrest bail else the parting line, so drawn by Honourable Superior Courts, between a plea of 'post arrest' and 'pre-arrest' shall loose its substance.
8. Worth to add here that case laws, referred by the applicants/accused, are of no help for the applicants/accused because in the case of Raza Muhammad Sial v. State (1988 SCMR 1223 ) the bail plea was insisted on main ground, as referred in the said judgment, as: 'The main ground o which the request for pre-arrest bail was pressed on behalf of the petitioner before the High Court was that, no doubt, he was incharge of P.R. Godown, but he had nothing to do with the handing over of the bags of wheat or taking over the same into godown'. It was further submitted that 'the statements of witnesses recorded under section 164, Cr .P.C., have not, in any way , implicated him'.
The situation in the case in hand is different because the applicants/accused have not denied the encashment of government fund through them which prima facie was misappropriated.
As regard the case of ljaz Akhtar v. The State (1978 SCMR 64) it would suffice to say that it was a case under section 497, Cr .P.C. And had its own peculiar facts.
As regard the case of Saeed Ahmed v The State (1996 SCMR 1132) the pre-arrest bail was granted on the ground that 'case entirely depends upon documentary evidence which was in poss ession of the prosecution'. With much regard and respect to the judgment of honourable Supreme Court I respectfully say that in case(s) of corruption the Anti-Corruption Police, FIR or even NAB do take the relevant record in their possession hence this plea shall frustrate the very object and purpose of exercise of extra-ordinary concession of bail and every accused of 'corruption' shall enjoy exception to the guidelines, so framed by honourable Supreme Court of Pakistan in the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) framed the following guidelines to decide an application for pre-arrest bail:-
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocentpersons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. Unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g., he had no past criminal record or that he had not been a fugitive at law; and finally that;
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i.e. The Court of Session before petitioning the High Court for the purpose.
In same judgment, it was further held that: '15. It had also been repeatedly held by the Superior Courts (reference be made to Zia-ul-Hassan's case supra) that no Court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest especially the condition regarding mala fides were 'proved. No such finding exists in the said bail granting orders. On the contrary , while talking about the disappearance of Tariq accused for more than two years after his nomination as an accused, the Hon. Judge found that the said accused was in no condition to escape arrest or to abscond and it was the police which had not caused his arrest for such a long period of time which observation obviously established absence of ulterior motives on the part of the police.'
Since, in the instant case the applicants/accused have failed to establish any mala fide on part of the Investigating agency or departmental intrigue rather they appear to be prima facie linked with the alleged offence of 'corruption', qualifying the term 'misappropriation' hence applicants/accused are not entitled for concession of extra ordinary relief of pre-arrest bail.
In view of above discussion, I am not inclined to accept the bail plea of the applicants/accused which was dismissed vide short order dated 07.09.2015 and these are the reasons thereof.